ANNUAL MEETING GREAT FALLS CLE THEME: LAW OFFICE PRACTICALITIES Details on Pages 20-21 SNOWBERGER WINS 2016 PRO BONO AWARD See Story on Page 18

Montana State Bar of Montana

LawyerSeptember 2016 | Vol. 41, No. 10 ANNUAL MEETING GREAT FALLS CLE THEME: LAW OFFICE PRACTICALITIES Details on pages 20-21 SNOWBERGER WINS 2016 PRO BONO AWARD See story on page 18

Also in this edition

> Analysis of outside influence > Are insurance bad faith in Montana judicial elections recoveries taxable? by Professor Anthony Johnstone > Resolution proposed on hearing > Trends in Environmental law for Supreme Court nominee by the State Bar's Natural Resources, Energy & Environmental Law Section > Bar launches online Career Center Montana Lawyer 1

The official magazine of the State Bar of Montana published every month except January and July by the State Bar of Montana, 7 W. Sixth Ave., Suite 2B, P.O. Box 577, Helena MT 59624. 406-442-7660; Fax 406-442-7763. INDEX E-mail: [email protected] State Bar Officers September 2016 President Matthew Thiel, Missoula President-Elect Bruce M. Spencer, Helena Feature Stories Secretary-Treasurer Neil Haight Pro Bono Award: Michele Snowberger...... 12 Jason Holden, Great Falls Immediate Past President Montana Judicial Elections: Does PastHold Lessons ...... 18 Mark D. Parker, Billings Annual Meeting Schedule/Highlights...... 20-21 Chair of the Board Leslie Halligan, Missoula Trends in Environmental Law...... 22-25 Board of Trustees Purchasing a Contaminated Site: Reducing Liability...... 22 Elizabeth Brennan, Missoula Marybeth Sampsel, Kalispell Liesel Shoquist, Missoula Technical, Legal Factors in Water Discharge Permitting..... 24 Tammy Wyatt-Shaw, Missoula Ellen Donohue, Anaconda State a Leading Player in Endangered Species Act...... 25 Shari Gianarelli, Conrad Paul Haffeman, Great Falls Tax Law: Insurance Bad Faith Recoveries...... 28 Kent Sipe, Roundup Luke Berger, Helena Kate Ellis, Helena J. Stuart Segrest, Helena Regular Features Jane Mersen, Bozeman Lynda White, Bozeman Member News...... 4 Ross McLinden, Billings Eric Nord, Billings State Bar News...... 6 Juli Pierce, Billings Court orders...... 10

ABA Delegates Law School News...... 31 Damon L. Gannett, Billings Shane Vannatta, Missoula CLE...... 34

Montana Lawyer Staff Obituaries...... 36 Publisher | Christopher L. Manos Editor | Joe Menden Job Postings/Classifieds...... 37 406-447-2200; fax: 442-7763 e-mail: [email protected]

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Page 2 September 2016 President’s Message | President Matt Thiel My hopes for Bar's future, as presidency winds down

While serving as President this year has without the efforts of the State Bar of Montana been a challenge at times while maintaining and the ABA on a national level. “God a practice, I am better for it and it has been won’t do the day- to-day work in an earthly an honor to serve with the other Officers, system of justice, won’t take the bench or Trustees, staff and volunteers who make our enter the jury box.” (David Mellinkoff, “The Bar work. This past year the Bar has worked Conscience of a Lawyer”). To a large extent hard to meet its many missions and mandates it is the organized bar that manages the daily “At a time when to maintain the administration of justice, im- grind of assisting the judicial system to sup- our politics prove access to justice and protect the public port the rule of law and educate the body poli- interest. The Bar is in good hands with the tic on what the Supreme Court has referred to have sought to incoming President and Trustees and I leave as this Nation’s “historic commitment to the encourage an- with the following hopes for our Bar: rule of law.” U.S. v. Nixon, (1974). The rule of That attorneys will trust that their intel- law is our common concern, regardless of our ger and distrust lect and wisdom are the keys to preserv- practice area or political philosophy. Inherent ... it is important ing their relevance in the face of disruptive in the rule of law is our belief in our legal changes in the practice of law brought on by system and the importance of ensuring an to step back to rapid changes in technology. The telegraph, independent judiciary regardless of whether appreciate that typewriter, telephone, telefax, television, com- we win or lose our case. At a recent ceremony puter, internet and mobile technology have celebrating his 20 years on the federal bench, the unified bar is all imposed varying degrees of change and Judge Donald W. Molloy said, “And I know the one challenges on the profession over the decades. that we often talk about the rule of law as if it But the core role and value of the legal profes- is a rule, but it’s really, I think, the way we all organization sion have not changed since the founding work together.” that allows all of our Nation. The human connection and At a time when our politics have sought to attorneys to common-sense experience of the counselor encourage anger and distrust toward govern- at law, the strategy and advocacy of the legal ment and even the judiciary, it is important to work together planner and trial lawyer, and the insights and step back from our busy practices to appreci- and speak as effective communication of the legal writer ate that the unified bar is the one organization will transcend the changes in the delivery of that allows all attorneys to work together and one for the rule legal services brought on by rapid changes in speak as one for the rule of law, and the reason of law.” technology. Knowing this we can embrace and respect that it requires, regardless of the change and leverage it to improve our cost ef- politics of the day. Even when we are too busy fectiveness and increase access to justice for all managing our caseload and wondering what State Bar Americans. If we accept and embrace change, that Bar has done for us today, the Bar is at of Montana President the lawyer as counsel and problem solver work maintaining the profession and protect- Matt Thiel is an attorney will remain relevant in the face of changes in ing the public interest. in Missoula whose the delivery of legal services brought on by Finally, thank you to all those who volun- practice focuses mostly the Internet economy. The profession can teer their time and resources to participate in on personal injury and thrive economically while keeping its focus on their Bar and its committees, commissions, labor law. He is an ap- increasing access to justice and protecting the sections and service and education programs pointed member of the public interest by leading on policy relevant to doing the ground work that brings life to the Montana Facility changes in the profession. rule of law through policy, education and Finance Authority and That we remind ourselves and the public public service. You are not paid and too often the Montana Insurance that we must actually work to preserve respect under-recognized but I want you to know you Guarantee Association. for the rule of law. This will not happen are appreciated. You make the Bar matter.

www.montanabar.org Page 3 Member and Montana News Raucci appointed to national He has participated in over 500 labor licensed attorneys and paralegals with the mediators, arbitrators panel agreements, handled scores of arbitra- added benefit of document review and tions, and managed over 200 labor and the option for one-on-one consultation Francis (Hank) Raucci is of counsel employment litigation cases. with licensed attorneys throughout the with Hattersley Walter, PLLP, and he Until recently he served as trustee on process. serves as an arbitrator and mediator in Taft-Hartley health and pensions with Serving clients in the Flathead Valley a wide variety of employment and labor combined assets in excess of $10 billion. and beyond, including remote consulta- matters. Raucci may be contacted at P.O. Box tions when appropriate, ILS provides Raucci has been appointed to the na- 1731, 33 S. Last Chance Gulch, Helena, seminars and assists clients on legal tional panel of mediators and arbitrators MT; 406-444-8746; and email fjssraucci@ matters related to guardianships, parent- for the Asbestos Personal aol.com. ing plans, adoptions, immigration, IP/ Injury Trust Fund which trademark, entertainment, technology, administers a $32 billion Limited-scope, sliding-scale business law and estate matters. Contact fund for the adjudication of practice opens in Kalispell ILS at IntegrativeLawSolutions@gmail. asbestos related claims. He com or call 406-250-9256 for more is a Fellow of the National Integrative Law Solutions (ILS) is a information. newly created law practice in Kalispell Raucci Academy of Distinguished Neutrals, and serves as an providing legal services for clients on a Holland & Hart Billings office Early Neutral Evaluator for the U.S. limited-scope, flat-fee and sliding-scale has 12 on Best Lawyers list District Court, appellate Mediation Panel basis. ILS gives clients access to legal of the Supreme Court of Montana, Court services when they do not qualify for The Best Lawyers in America has Appointed Special Masters, and the na- Montana Legal Services Association selected 12 Billings-based Holland & Hart tional panels of the American Arbitration aid yet cannot afford an up-front large lawyers for inclusion in the 2017 edition Association for commercial law, ERISA, retainer based on standard fees for legal which recognized 187 attorneys firm labor and employment law, and the services. wide. Affordable Care Act both as an arbitrator ILS also serves self-represented Additionally, Jeanne Matthews and mediator. through self-help seminars taught by Bender was named 2017 “Lawyer of the

October 14-15, 2016 DoubleTree Hotel Presents the Missoula, MT 64th AnnuAl Montana View the full agenda and register tAx InstItute online at umt.edu/tax-institute.

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Page 4 September 2016 Member and Montana News Year” for Employment Law - Management in the Billings area. She was among 20 Holland & Hart attorneys named the Best Lawyers 2017 “Lawyer of the Year” in their respective markets and practices areas. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year.” Newly recognized in 2017 is Michael Manning. Other attorneys from Holland & Hart’s Billings office recognized were Kyle Gray, Shane P. Coleman, Charles W. Hingle, W. Scott Mitchell, Michael Monson, Lawrence W. Peterson, Jason S. Ritchie, Robert L. Sterup, Elizabeth A. Nedrow, and Michele M. Sullivan. AG: Missoula County fully compliant in prosecution of sex assault cases The Missoula County Attorney’s Office is in full compliance with an agreement made two years ago to improve the way its prosecutors handle sexual assault cases, Montana Attorney General Tim Fox announced on Aug. 17. The agreement was signed after the AG’s Office intervened in and settled the legal dispute between the Missoula County Attorney’s Office and U.S. Department of Justice. Fox said his office’s oversight of the issue has ended. Specialists in Forensic “Missoula County Attorney Kirsten Pabst and her team are to be commended for their diligent work,” Fox said. “In the Damages Assessment time since this agreement was signed, the Missoula County Attorney’s Office has worked very hard alongside our prosecutors and a special technical advisor to evaluate and improve all aspects of how sexual assault cases are handled and how We provide the following services: victims are treated.” “I am extremely proud of our Special Victims Unit  Expert Witness Tes�mony program which we’ve built from the ground up to enhance  Earning Capacity Evalua�on community safety and utilize best-practices to better serve  Life Care Planning victims of crime,” Pabst said. “With the support of our local Aubrey Corwin M.S., L.P.C., C.R.C. administration, we’ve overcome institutional barriers to unveil  Medical Record Review a truly innovative and comprehensive program that is the first  Catastrophic Case Evalua�on of its kind.”  According to the AG's Office, the Missoula County Voca�onal Rehabilita�on Services Attorney’s Office has: taken the following steps since the  Pediatric Case Evalua�on agreement: VDI experts are retained in cases involving children n Developed clear policies and guidelines for prosecuting and adults with damages claims arising from sexual assault cases. personal injury, medical negligence, trauma�c n brain injury, toxic torts, environmental injury, Participated in special training for sexual assault investi- product liability, labor and employment and family gation, prosecution, and victim treatment. Kelly McMillan law/domes�c rela�ons. B.S.N., R.N., C.L.N.C. n Hired a victim-witness coordinator, investigator and trauma counselor to assist with sexual assault cases and address the effects of secondary trauma on staff. Oﬃces Na�onwide to Serve all of Your Forensic n Formed a Special Victims Unit, with five dedicated at- Damages Assessment Needs torneys and a paralegal. Toll Free: 800‐444‐4VDI www.voca�onaldiagnos�cs.com n Improved communication and coordination with law enforcement agencies and community partners. www.montanabar.org Page 5 State Bar News Resolutions proposed on U.S. high court nominee, MLSA A resolution calling for the U.S. Senate to hold confirmation hearings on the nomination of Judge Merrick Garland for U.S. Read proposed resolutions online Supreme Court justice is among several proposed for vote by the State Bar of Montana membership at the 2016 Annual Meeting. The proposed resolutions are posted online at mon- President Barack Obama nominated Judge Garland after the tanabar.org sudden death of Justice Antonin Scalia in February. The Senate has refused to hold confirmation hearings, arguing that they should not confirm a new justice during an election cycle for vote on at the Annual Meeting. president. One of the proposals calls on the bar to strongly urge the U.S. The proposed resolution was put forward by Active Attorney Congress to increase federal funding for legal services programs members Shane Vannatta, Beth Brennan and Mae Nan Ellingson, nationwide and strongly urge all members of the State Bar of and Senior Attorney member Bob Knight, all of Missoula. Montana to participate in pro bono programs established by It is one of three resolutions that have been proposed for the State Bar, local bar associations, Montana Legal Services members to vote on at the Annual Meeting. Association and various other entities to assist in providing legal The resolution reads, in part, “… the Senate has never before services for those unable to pay. refused to engage in the process of providing its ‘advice and Another proposed resolution is to thank the members of the consent.’ Regardless of whether the Senate holds public hear- Cascade County Bar Association for their generous contributions ings, closed hearings, hearings at which the nominee testifies, or of time and talent for the 42nd Annual Meeting. hearings at which the nominee does not testify, it has taken some The resolutions, if approved by the State Bar’s Past President’s steps to confirm or reject every judicial nominee not otherwise Committee at its Resolution Meeting, will be voted on during the withdrawn from consideration.” Bar’s business meeting from noon to 2 p.m. on Thursday, Sept. 22, at the Great Falls Holiday Inn. Other resolutions The resolution meeting will be held on Wednesday, Sept. 21, Two other resolutions have been proposed for members to from 2 to 4 p.m. at the Great Falls Holiday Inn.

Attention firms: Get in the Montana Firm Directory Fastcase tip of the month: Copy Citation function Firms that would like to continue or add a listing in the State Bar of Montana's Firm Directory in the annual Lawyers' Deskbook must send in their information by Don’t let the tedious process of Monday Oct. 17. copying down case citations sidetrack Listing in the Firm Directory is only $40 and gives your firm exposure to attor- your research project. Instead, use the neys, law-related organizations, and other legal professionals. A logo and website can Copy Citation function in Fastcase be included at no extra charge. Please provide logos as a vector file or a high-resolu- to automatically copy and paste the tion image sized 300 ppi or larger. citation of the case Contact Jill Diveley at [email protected] or mail to State Bar of Montana, you are quoting P.O. Box 577, Helena, MT 59624. Be sure to include the following information: into the document n firm name you are working n address on. Here’s how it n phone number works: n fax Step 1: Access n website the case that you n affiliated staff. want to cite. Make sure that you are in the full case text view and not on the results screen. Get your changes in now for 2017 Lawyers' Directory Step 2: Select Copy Citation from the Document menu. Now is the time to verify your listing for the 2017 Lawyers' Deskbook & Directory. Step 3: Open the document (or All changes to your contact information are due by Monday, Oct. 17. e-mail) that you want to paste the There are three ways to update your information: citation into. Put your cursor in the 1. Email: Jill Diveley at [email protected] appropriate spot in the document and 2. Update online: Log in at montanabar.org and Edit your bio (under Manage press Ctrl + V. Profile. Voila! The case citation will be 3. Fax: 406-442-7763 pasted into the document. For verification purposes you MUST include your Bar number or date of birth.

Page 6 September 2016 MONTANA DEFENSE TRIAL LAWYERS Annual CLE Seminar • November 18, 2016

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● ● ● www.montanabar.org Page 7 State Bar News ABA's Executive Director praises Thiel as tech leader State Bar of Montana President Matt Thiel received praise Lawyer on how the legal profession should respond to disrup- from the Executive Director of the American Bar Association tions caused by technology. for being a leader in technology issues. “This is a man who gets it,” Rives said. “He knows that tech- The ABA’s Jack L. Rives made his remarks in a speech be- nology is here to stay. He embraces change, and that’s what our fore the ABA House of Delegates Aug. 8. In the speech, Rives best leaders do, they understand the need to move forward.” asked ABA members to embrace today’s challenges, adopt To see video posted online of Rives’ speech before the technological change and show relevance and become an orga- House of Delegates, visit http://bcove.me/ui8jj936. His com- nization of the 21st Century. ments on Thiel begin about 10 minutes, 45 seconds into the He cited Thiel’s articles over the past year in the Montana speech.

State Bar of Montana launches The new online Career Center MONTANA LAW REVIEW EST. 1940 The State Bar of Montana announces its newest offering to its members — a career Presents center that connects job seekers with prospective employers in the legal industry. The new career website can be found at jobs.montanabar.org. Access is available to State Bar members and nonmembers alike. “The State Bar promotes legal industry knowledge, networking and excellence,” said Chris Manos, State Bar of Montana president. “Launching an online career center for legal professionals in Montana is a natural extension of that mission.” The State Bar’s career center distinguishes itself from generalist job boards in a number of ways. These include:  a highly targeted focus on employment opportunities in the Montana legal industry;  anonymous resume posting and job application — enabling job candidates to stay connected to the employment market while maintaining full control over their confiden- tial information;  an advanced Job Alert system that noti- fies candidates of new opportunities matching their own pre-selected criteria;  access to industry-specific jobs — and top-quality candidates — often not seen on the mass job boards. To visit the Career Center, log onto the State Bar of Montana website www.montanabar.org and click on the Career Center logo on the right rail of the home page. Once there you can immediately post your resume or a job opening. For additional information, please contact the State Bar at 406-447-2200 or [email protected]. The site was built by Your Membership Careers, which powers career centers that serve niche audiences nationwide.

Page 8 September 2016 News of Note 'Making a Murderer' attorney to speak in Missoula Oct. 7 A Wisconsin attorney who came to Project’s annual open house at the StrangBradley, LLC. national prominence in the hit Netflix Alexander Blewett III School of Law. The He is an adjunct professor at documentary series “Making a Murderer” Montana Innocence Project’s open house Marquette University Law School, the will speak at the University of Montana will be from 5:30-7:30 on Oct 7 in the University of Wisconsin Law School and next month. law school atrium. Strang, a supporter of University of Wisconsin’s Division of Attorney Dean Strang Innocence Projects nationwide, will speak Continuing Studies. He is a member of will participate in a moder- at 6 p.m. the American Law Institute and serves ated discussion on Friday, The Montana Innocence Project is a on several charity boards, including the Oct. 7, at the University statewide nonprofit organization dedi- Wisconsin Innocence Project. His second of Montana’s Dennison cated to exonerating the innocent and book will be published in early 2018. Theatre. The conversation preventing wrongful convictions. Tickets for the moderated discussion Strang will begin at 8 p.m. and will In addition to his work as one of are $25 for the general public and $15 center on many of the impli- Avery’s trial lawyers Strang is also known for UM students with a valid Griz Card. cations of the Steven Avery case, featured for his first book “Worse than the Devil: They are on sale at all GrizTix locations, in “Making a Murderer,” as well as the Anarchists, Clarence Darrow and Justice including The Source in the University systemic failures of the criminal justice in a Time of Terror.” Center, Southgate Mall, Worden’s system. He also worked five years as Market and MSO Hub. They also can be Prior to his engagement at the Wisconsin’s first federal defender, is a purchased online at http://www.griztix. Dennison Theatre, Strang will be the fea- shareholder in three of the state’s leading com or by phone at 406-243-4051 or tured speaker at the Montana Innocence criminal defense firms and co-founded 888-MONTANA.

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www.montanabar.org Page 9 Books Freed former MTIP client releases book of poetry Book highlights high-profile trials of 20th century

A former client of the Montana Innocence Project whose murder There were many murder trials in the 20th century that cap- conviction was overturned in 2015 has released a new collection of tivated national attention and at the time earned the title “trial poetry honoring the struggle of soldiers. of the century. A new book by a California attorney and his "Fishers of Trout and Men: Protectors of the Realm" is a col- Harvard grad student daughter chronicles 10 of these cases. lection of poems written by former MTIP client Richard Raugust. “Trials of the Century,” by Mark Phillips and Aryn Phillips, Raugust, an ex-infantry soldier who served in the U.S. Army from released on July 26, has received praise from authors, commen- 1984-1986, calls his book a “spirit-inspired tool designed to thwart tators and lawyers like. It is available in paperback and Kindle and tamper with the monster we call suicide editions. in our military and civilian populations.” It is Starting with the murder of famed archi- available on Amazon. tect Stanford White in 1906 and ending with In 1998, he was convicted for the mur- the O.J. Simpson trial of 1994, the authors der of his best friend, Joseph Tash. In 2015, recount 10 compelling tales spanning the District Court Judge James Wheelis reversed century. Other well-known cases in the book his conviction on the grounds that Raugust's include the Lindbergh baby kidnapping, the constitutional rights were violated when eyewit- Sam Sheppard murder trial (“The Fugitive”), ness testimony that corroborated his alibi was the “Helter Skelter” murders of Charles withheld from his defense at the time of trial. Manson. Judge Wheelis ordered a new trial and released “For trial junkies—and who isn’t?—these Raugust on his own recognizance pending a riveting accounts of ten ‘trials of the century,’ one from each new trial. decade, are a must-read. The stories tell us as much about the The Montana Attorney General's Office initially appealed Judge history of each decade as they do about the trials themselves,” Wheelis' ruling, but in August, the office moved to dismiss that ap- said law professor and best-selling author Alan Dershowitz. peal, the Associated Press reported. The AP asked Sanders County The authors conclude with an epilogue on the infamous Attorney Robert Zimmerman by email if he planned to refile the Casey Anthony (“tot mom”) trial, showing that the 21st century murder charge, but he had not responded as of press time. is as prone to sensationalism as the last century.

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Page 10 September 2016 Court News

Applicants sought for Gallatin 20 years as District Court judge. for more judges. County District judge Judge Salvagni was elected Gallatin In all, 46 district judges now handle County Attorney in 1982. He held that more than 56,000 cases. The commission The Judicial Nomination post until he was elected District Court report says models found six districts Commission is accepting applicants for judge in 1996. need at least one additional judge. Gallatin County District Court judge. Judge Salvagni has been a mem- Court officials say it would cost about The Honorable Mike Salvagni will ber of the State Bar of Montana since $250,000 a year to add one new district resign his position effective Dec. 31. 1973. He began practicing in Gallatin judge. Any lawyer in good standing who County in 1976, first contracting as a The seven-member commission is meets the qualifications for district public defender, before winning election made up of judges, attorneys, legislators court judge may apply for the posi- as Gallatin County Attorney in 1982. and county officials. He held that post until he was elected tion. Applications will be accepted APPOINTMENTS until Wednesday, Sept. 21, at 5 p.m. District Court judge in 1996. Application forms are available elec- Court reappoints Manos to tronically at the Judicial Nomination Panel does not recommend Commission’s web page (http:// judicial redistricting Commission on Technology courts.mt.gov/supreme/boards/ proposals The Supreme Court of Montana has jud_nomination). reappointed State Bar Eecutive Director The public is encouraged to comment A state legislative commission won’t Chris Manos or his designee to the on applicants during the public com- recommend redrawing any of Montana’s Court's Commission on Practice. Manos' ment period, which will be Thursday, judicial districts as a way to ease the previous term on the commission ex- Sept. 22, through Monday, Oct. 24. The Montana court system’s growing pired in April. commission will forward the names of caseloads. The new three-year term will expire three to five applicants to Gov. Steve The Judicial Redistricting on April 1, 2019. Bullock for appointment. Commission on Aug. 16 approved its Justice Michael Wheat chairs the The person appointed by the gover- final report to the state Legislature. The 11-member commission. Other mem- nor is subject to confirmation during panel considered and rejected six pro- bers include the clerk of the Supreme the 2017 legislative session, and must posals to reshape the state’s 22 judicial Court, the Supreme Court admin- win election in 2018. The successful districts. istrator, a clerk of District Court, a candidate will serve the remainder of The commission determined that District Court judge, the chair of the Judge Salvagni’s term, which expires in redistricting is not necessary and is not Commission of Courts of Limited January 2021. the appropriate way to address the need Jurisdiction Automation Committee; a Annual salary for the position is for more judges. judge of a court of limited jurisdiction; a $126,132. The commission determined that member of the Legislature; the state law Judge Salvagni announced his retire- redistricting is not necessary and is not librarian; and a member of the public. ment on his 69th birthday, Aug. 1, after the appropriate way to address the need Upcoming Montana Supreme Court Oral Arguments Supreme Court to hear oral argument at Annual Meeting Friday, Sept. 23, Holiday Inn, Great Fall; Introduction BLM has validly reserved water rights in a pothole lake—they at 10:45 a.m., oral argument at 11:15 a.m. — United States argue that genuine issues of material fact exist as to the size and Bureau of Land Management v. Barthelmess, et al. A group of recordation of the pothole lake. Bureau of Land Management permittees challenge a Water Professor Michelle Bryan of the University of Montana's Court determination that six stock water claims on a Milk River Blewett School of Law will give an introduction to the case Basin tributary in Phillips County are owned by BLM. The starting at 10:45 a.m. Water Court determined the existence of the permittees’ senior Wednesday, Sept. 28, Courtroom of the Supreme Court, instream rights neither defeats BLM’s claims based on five Helena, 9:30 a.m. — West v. USAA. USAA Insurance appeals reservoirs BLM has constructed nor provides legal grounds for a $1.464 million judgment from Great Falls District Court that declaring the BLM reservoir rights to be owned by the permit- USAA acted in bad faith in refusing to settle a claim. USAA tees. The permittees object to the determination that BLM is the argues that the District Court made several errors in relation to owner of the claims, because the permittees or their predeces- a Tricare lien that USAA says it had a reasonable basis in law to sors in interest have been the actual user of the water. The protect. permittees also object to the Water Court’s determination that www.montanabar.org Page 11 Feature Article | Campaigns and the Judiciary Montana judicial elections: Does the past hold lessons for future? By Anthony Johnstone University of Montana's Alexander Blewett III School of Law Editor’s note

Montanans never much liked outside influence in their This is an abridged version of A Past and Future of judiciary, and their first line of defense was judicial elections. Judicial Elections: The Case of Montana, 16 J. App. Practice This may strike us as odd now, in our Citizens United era of & Process 47 (2015), and is reprinted by permission of unlimited outside money and even national party politics enter- the publisher. The full article is available for download ing our Supreme Court campaigns. Yet the outsider problem at: http://ssrn.com/abstract=2660514. The author served and our electoral solution are older than statehood itself. After as counsel for the State of Montana in Citizens United seeing record amounts of money spent on court candidates in v. Federal Election Commission and American Tradition the last campaign, and with three seats on the ballot this fall, it Partnership v. Bullock. is worth considering where we’ve been and where we’re headed on Montana’s judicial campaign trail. carpetbagger for Associate Justice of the Supreme Judicial elections arose two centuries ago as a democratic Court of Montana. Seventy-five thousand people solution to the problem of political influence on judges. Under in the Territory to make laws for themselves, and the traditional model still used by the federal government and a a Hoosier sent out from Indiana to tell us what we few states, judges owed their appointments to the executive and have done. How long, oh Lord; how long! legislative branches. In such a system, the composition of the The proposed 1884 Constitution reflected this suspicion judiciary is neither independent of the political branches—wit- of outside influence. In its memorial to Congress, the conven- ness the present gaming of the United States Supreme Court tion sought statehood to redress “the policy which has so long vacancy—nor directly accountable to the people. Most states prevailed of sending strangers to rule over us and fill our of- have taken the alternative path of judicial elections. Today, with fices.” The convention’s address to voters devoted more lines to about 90 percent of state judges subject to election, judicial elec- grievances against the appointed judiciary than it devoted to the tions are not going away anytime soon. legislative and executive branches combined: A history of Montana’s judicial elections The present system is manifestly wrong again; by The origins of judicial elections in Montana date back 150 it the people have no voice in selecting the judges. years to a suspicion of the political appointees who staffed the They are sent to us from the far off East, probably territorial courts. In the gold rush that opened Montana’s ter- in deference to the traditional idea that it was ritorial history, customary miners’ courts and the storied vigi- from thence all of the “wise men” came. . . . The lantes dispensed civil and criminal justice. Acting Gov. Thomas character of our litigation is such that, however Meagher, a Union Democrat, chafed against federal influence learned in the law our eastern judge may be, he over the new territory. He pushed for statehood in 1866 with will find himself much embarrassed in his new a constitutional convention and two extraordinary legisla- field. tive sessions. When a two-member majority of the territorial In the proposal, justices would be “elected by the people” for court, both Republicans, declared the acts of the extraordinary six-year terms, and would be “required to have resided in the sessions null and void, the state legislature redistricted those State or Territory at least two years prior to their election.” The justices to the wilderness. The Republican U.S. Congress retali- 1889 Constitution retained both provisions. ated by nullifying all laws enacted in the extraordinary sessions, With statehood, Montana’s judiciary transitioned from revoking the legislature’s judicial districting power, and raising federal appointees unfamiliar with mining law to state elected the territorial judges’ salaries by $1,000. officials all too familiar with corporate overreach and cor- Once the territorial government settled in, Montana courts ruption. In what came to be known as the War of the Copper developed a reputation for efficiency. Yet residents still resented Kings, William A. Clark, Marcus Daly, and F. Augustus Heinze the courts’ lack of democratic legitimacy. On the eve of the sec- engaged in a decades-long struggle for domination of Butte’s ond Montana constitutional convention in 1884, one newspa- “richest hill on earth,” and incidentally, for control of the state’s per editorial captured the popular complaint that government—including its courts. The Montana Supreme [t]he President has nominated another Court later recounted the broad history of “[t]hose tumultuous

Page 12 September 2016 years . . . marked by rough contests for political and economic domination primarily in the mining center of Butte, between About the Author mining and industrial enterprises controlled by foreign trusts or corporations.” Some of those rough contests played out before elected state Anthony Johnstone is an Associate Professor at the University of Montana's judges. Heinze waged litigation in state courts to hold the rival Alexander Blewett III School of Law. He Amalgamated Copper Company at bay while he, sometimes teaches and writes about Federal and literally, mined ore out from under the company’s feet. One of State Constitutional Law, Election Law, the judges hearing Heinze’s case, William Clancy, “found in Legislation, and related subjects. Heinze’s favor with monotonous regularity” in what the histo- rian K. Ross Toole memorably termed “a burlesque of judicial dignity.” In 1903, after two devastating blows in Judge Clancy’s made a case for judicial elections based on personal and politi- court, Amalgamated shut down its operations until winning the cal history. In Montana, he explained, “we have strong corpo- enactment of a “Fair Trials” law allowing the peremptory sub- rate influence; where, if I can elect a Governor, and through stitution of a district judge. (A descendent of the “Clancy Rule” that office nominate and appoint the district and the Supreme remains in effect today.) Heinze sold out to Amalgamated after Court judges, I can run this state. . . . I can own it.” Noting how Clancy lost re-election. Yet the War of the Copper Kings left the Anaconda Company and its former affiliate the Montana lasting scars, as the Anaconda Company consolidated power Power Company could dominate appointment processes, over state government in Montana. including the Constitutional Convention Commission itself, he It took the one-person one-vote revolution, and reappor- concluded tionment of the state legislature in 1965, to dethrone Anaconda. The new legislature moved toward constitutional reform and you cannot pick a committee in the State of a more accountable state government. As with the earlier con- Montana that will be totally free of that kind of stitutions, judicial selection emerged as a central concern. In a influence. And I am afraid of it, and if I have to 1967 “Blueprint for Modernization,” Professors David Mason choose between one or the other, I’m going to the and William Crowley offered a variant of the “Missouri Plan” electorate every time, because I had a chance . . . to of merit panel selection, a reform that had failed five times in be elected. With another few bucks, I might have Montana since 1945. When the Constitutional Convention del- made it. egates met in early 1972, Sandra Muckelston’s detailed commis- Noted lawyer-delegate James C. Garlington argued for ju- sion report explained that “[t]he major criticism of the elective dicial appointment. “There is clear agreement on the part of all system of judicial selection, be it partisan [as Montana’s system that we do need good judges,” he noted, “[t]he question is how was before 1935] or non-partisan, is that voter knowledge of to recruit them.” He suggested that campaigns make judicial candidates and their qualifications is insufficient to form a basis office unattractive for many good lawyers because the judicial for a rational choice.” A judicial candidate also might “depend candidate “must sever himself completely from the private upon contributions from ‘friends,’ which may affect his impar- practice of law.” tiality just us much as those judges who receive financial sup- In a series of divided votes the delegates rejected both the port from party coffers.” One Montana justice estimated that he majority and minority proposals and adopted Article VII, sec- spent nine months of an election year campaigning for office. tion 8, whose original text suggests its complicated origins in These studies set the stage for an unusually deliberative both the minority and majority proposals. The result was the discussion of judicial selection by the 100 elected delegates of maintenance of contested judicial elections, but with a merit the Constitutional Convention. The 24 lawyer-delegates car- plan of appointment by nominees from a selection committee ried on most of the debate among themselves. The delegates’ in case of vacancies. Based on a campaign that noted, reveal- consideration of the judicial article was among the longest ingly, “[c]ontested election of judges is not changed,” the people and most divided at the convention. The Judiciary Committee narrowly ratified the 1972 Constitution, including the new divided five-to-four on the issue of judicial selection. Despite judicial article. the convention’s general atmosphere of bipartisanship, the Reformers were discouraged by the implementation of the Judiciary Committee’s votes divided largely along party lines. compromise judicial article. Delegate Mason Melvin regretted Democrats in the majority would retain judicial elections, while that “the Legislature tossed the mechanics of the appointment the predominantly Republican minority noted it was “especially of judges right into the political kettle” by giving the governor apprehensive of the future political character of [Montana’s] the power to appoint the majority of the nominating com- judges,” and proposed merit selection. mission. Delegate Jean Bowman observed the Constitution Although the Montana Bar Association and leading judges “bungles the method of selection process,” because it “provides supported a merit selection plan, the Judiciary Committee’s poll for neither pure election nor merit selection and, at best, con- of nearly 500 lawyers in the state found that a slight majority stitutionalizes uncertainty in the constitution in the method of favored judicial elections; over 100 members of the Montana selection.” The judge for whom Delegate Bowman later clerked, Trial Lawyers Association favored elections by more than a Justice John C. Harrison, reached a harsher judgment: the two-to-one margin. Delegate John M. Schiltz, a former legis- “worst judiciary article in fifty states.” The legislature and voters lator and an unsuccessful candidate for chief justice in 1970, appear to agree that the convention left room for improvement. www.montanabar.org Page 13 The judicial article is among the most frequently amended Two weeks later, Delegate Rick Champoux returned to the articles in the Montana Constitution, with voters approving all proposal, arguing “if we don’t provide the expenses for these four constitutional referenda amending the article. judges, somebody else will, and that other group will be, in the Notably, the convention delegates also debated an in- main, large companies that come before this court, whether novative plan for public financing of judicial campaigns. The they do it directly or indirectly.” In response, the delegates sus- Judiciary Committee proposed a section requiring the legisla- pended the rules to reconsider the proposal, but only as applied ture to “appropriate funds for the contested general election to Supreme Court justices. This time, the delegates adopted the campaign expenses of candidates for the offices of justices of proposal by 55 votes to 32. All that remained was final consider- the supreme court and district court judges.” Unlike the judicial ation of the judicial article. The convention adopted the first 13 selection proposal, the public-financing proposal enjoyed broad sections — including the compromise judicial-selection section support on the committee. It recognized “the same problems — by wide margins. But in a final vote, the public-financing we have always had” with judges running for office, including proposal fell short. What would have been a major reform of “the necessity that the judge demean himself and his position state judicial elections failed by just two votes. by seeking campaign funds,” the influence of lawyers’ contributions, and “the fact that the appearance of justice suffers in the The new normal of judicial elections in Montana process.” The failure of the public financing proposal left open the The committee’s solution to these problems prompted a door to increasingly expensive privately funded judicial cam- prescient discussion of campaign finance in judicial elections. paigns. This, in turn, exposed judicial elections to the eventual Delegate Schiltz opened the debate on the public-financing deregulation of campaign finance that culminated with Citizens provision, noting that the cost to taxpayers of financing judicial United v. Federal Election Commission in 2010. Although elections was a “pittance in view of the benefits,” including an that case is associated with corporate speech rights — an idea “independent Judiciary” and assurance “that one man was not already established in constitutional doctrine — it primarily buying the job.” Looking toward a future of big-money cam- holds that unlimited campaign spending cannot corrupt the paigns, he warned that “this is going to come to Montana, and I political process as long as the money is not contributed directly can think of no other, better place to start as an experiment for to a candidate. The Montana Supreme Court took a lonely stand a very small amount of money than on the Judiciary.” The del- against the case in American Tradition Partnership v. Bullock, egates gave the public-financing proposal preliminary approval trying to distinguish Montana’s campaigns, including judicial by a narrow margin, but voted later that day to reconsider the campaigns, from the presidential campaign at issue in Citizens proposal. Delegate William Burkhardt reported that a lawyer United. Yet Montana drew a quick rebuke from the Supreme friend wrote to him that he hoped it would be “well debated Court. As a result, many of the legal and ethical constraints on before its death.” So it was. judicial campaign speech and finance, once a realm of electoral Several lawyers spoke in support of public financing. exceptionalism respecting the distinct office of a judge, have Delegate Wade Dahood argued “only the so-called ‘big boys’ fallen alongside their political-campaign analogues. can afford to support [candidates] with enough campaign Following Citizens United, political parties now are as free to funds,” and “subconsciously, at least, it has an effect upon their endorse nonpartisan judicial candidates as they are to endorse decision.” Delegate and Convention President Leo Graybill partisan political candidates. Corporations and unions now are asked whether the delegates were “going to let the Judiciary as free to spend unlimited amounts in judicial campaigns, just continue to get its money to run for contested Supreme Court as they may in political campaigns. Contributors now are free offices by getting it from big . . . corporations and concerns who to choose their preferred levels of disclosure by selecting among have a lot of litigation in the Supreme Court.” To the criticism candidate campaigns, super PACs, or less transparent vehicles. that public financing would simply relieve lawyers from fund- Careful contributors may enjoy significant influence in can- ing judicial campaigns, Delegate Graybill continued by assert- didate campaigns — judicial or political — without triggering ing that “[t]he people that it’s going to relieve is the common either a disqualifying conflict or even the obligation to identify people who have to go to that Supreme Court occasionally themselves. Even campaign contribution limits, not at issue in against some major interest who is there constantly.” Citizens United itself, have been lifted by a recent constitutional Opponents, however, doubted that the legislature would challenge in Montana. provide sufficient funding, and asked why only the judi- Meanwhile, state courts remain important players in in- ciary should receive public campaign financing. Delegate Joe creasingly polarized debates concerning state law and politics. Eskildsen, originally a proponent of the proposal, argued that One-party state legislatures and executive branches, encouraged “when you look for political office, then you got to expect to by historically large legislative margins, test state courts with find your own campaign funds and to finance it yourself.” contentious laws and constitutional questions. In states where Delegate Garlington raised free speech concerns, worried that a balance of power once encouraged political compromise, the the measure would “inhibit the rights of citizen groups to take losing party now may resort to litigation. The same moneyed an interest in” judicial elections. Delegate William Swanberg, interests that help set the legislative agenda also loom over state another lawyer, raised concerns about circumvention: “[T]he courts. Those judges and justices must decide the high-stakes state will be on the [hook] for the basic campaign expenses, and and politically charged cases that follow, knowing their deci- some candidate will find some way of getting around it.” The sions may set the course for their next election campaigns. A delegates then voted to delete the provision. moderate judge who does not line up neatly with moneyed interests risks electoral defeat. Case by case, issue by issue, term

Page 14 September 2016 Financing of contested Montana judicial campaigns The chart below shows contested Supreme Court candidate campaign spending from 1990 — the earliest existence of financing since 1990, in 2014 dollars. Fully disclosed can- detailed campaign finance records in Montana — until the didate contributions accounted for the majority of judicial U. S. Supreme Court's 2010 Citizens United decision. $900,000

$800,000

$700,000

$600,000

$500,000

$400,000

$300,000

$200,000

$100,000

Candidate Funding Campaign Contributions Independent Expenditures Undisclosed (estimated)

* denotes winner by term, the polarization of the political themselves, accounting for nearly a quar- PAC, like most PACs, fully disclosed its branches runs to the courts. This is the ter of the total. On average less than six contributors, who are almost entirely new normal in judicial elections. percent of campaign contributions have Montana lawyers. In the 2000 and 2002 Until Citizens United, fully disclosed come from out-of-state sources. Before Supreme Court campaigns, the Montana candidate contributions accounted for the the rise of independent expenditures after Law PAC spent around $150,000 total on majority of judicial campaign spending. Citizens United, Montana’s most expen- multiple candidates. In the bitter 2004 (See Chart 1.) Since 1990, the earliest sive judicial campaign was the 2000 race race between Justice James Nelson and extent of detailed campaign-finance between Justices Karla Gray and Terry state Rep. Cindy Younkin, the PAC spent records in Montana, the average Supreme Trieweiler for chief justice, which neared as much as $409,000, the highest amount Court candidate raised about $139,000 one million dollars. of independent expenditures prior to overall, and $212,000 in a contested Independent campaign expenditures Citizens United. Several races from 2006 election (all figures are in 2014 dollars). are less transparent. Significant outside through 2010 either were uncontested or The largest source of campaign contribu- money first appeared in the competi- did not appear to involve significant in- tions in Supreme Court elections, not tive 2000 campaigns for chief justice and dependent expenditures. As the Montana surprisingly, is lawyers and lobbyists, who associate justice, nearly all of it from Trial Lawyers Association executive account for nearly a third of campaign the Montana Trial Lawyers Association director later told the New York Times, contributions. Next are the candidates affiliate the Montana Law PAC. This “[i]n 2006, 2008, ‘10, ‘12, we didn’t spend www.montanabar.org Page 15 anything—nothing, zero.” spent $519,840 of independent expenditures on behalf of Mike The first Montana Supreme Court campaign waged en- Wheat. The contributions to MLJ, erroneously called a “dark tirely after Citizens United came in 2012, when independent money” group by the VanDyke campaign, were disclosed in expenditures raised new questions about so-called dark-money nearly all cases down to the individual level. A third outside groups. Justice Nelson announced his retirement in early 2011, group, Montana Lawyers for Experienced Judges, did spend noting that judicial campaigns “are expensive, time consum- an undisclosed amount to run an online attack ad against ing and increasingly partisan.” An organization called the VanDyke. Montana Growth Network, founded by Republican state Sen. Mr. VanDyke’s side saw the unprecedented entry of a Jason Priest, criticized candidates Elizabeth Best and Ed Sheehy national political party in a Montana Supreme Court race. The for past campaign contributions to Democrats and praised Republican State Leadership Committee (“RSLC”) formed the candidate Laurie McKinnon as “the only non-partisan choice Judicial Fairness Initiative Montana PAC to spend $430,263 for Supreme Court justice.” Judge McKinnon disavowed the supporting VanDyke. Unlike the trial-lawyer groups, the RSLC outside attacks, saying “[m]udslinging diminishes the prestige PAC was funded almost entirely by lump-sum transfers from of our highest court.” In 2015, an investigation by Montana’s its parent organization in Washington, D.C. Americans for Commissioner of Political Practices revealed the group raised Prosperity (“AFP”), which reportedly spent about $170,000 on $878,000 in largely undisclosed funds, including several television advertising alone, did not register with or report to six-figure donations from out-of-state individuals (and their the Montana Commissioner of Political Practices. Implausibly, companies) with Montana property affected by then-pending it maintained its exemption from disclosure by purporting to stream access litigation. be an issue ad, asking the viewer to “call Mike Wheat and tell The 2014 contest between Mike Wheat and Lawrence him to keep his partisan politics out of our Supreme Court,” VanDyke marked the full fruition of Citizens United in a and providing the court’s phone number as if to invite ex parte Montana judicial campaign. Justice Wheat had been appointed public comment on cases before the court. A late entrant on to the seat in 2010, weeks before Citizens United was decided. VanDyke’s side was Montanans for a Fair Judiciary, led by a In his 2014 campaign, Justice Wheat criticized Citizens United former executive director of the Montana Republican Party, and echoed traditional concerns about “outside influences” in which disclosed spending about $60,000 raised from a handful judicial races, explaining that “[w]e Montanans have an inde- of mostly out-of-state donors. pendent attitude and we don’t want outside corporations or By the time the candidates met for a forum in September special interest group[s] telling us how to run our affairs.” In his 2014, questions of campaign finance had taken center stage. challenge, former State Solicitor General Lawrence VanDyke Justice Wheat opened by framing his perspective on “what this highlighted Justice Wheat’s partisan political background. “My race really is all about. . . . how our court may be under attack problem with Mike Wheat is not that he’s a liberal Democrat,” from out-of-state money, from out-of-state corporations who VanDyke told a reporter, “[m]y problem is he judges like a want to come into this state and influence who’s going to be on liberal Democrat.” Both candidates emphasized experience, and the court.” VanDyke responded that voters should have their each criticized his opponent for a lack of it. VanDyke also won “hypocrisy filter on,” saying that “[t]he issue is whether or not a challenge to his qualifications as a lawyer “admitted to the the trial lawyers are going to be the only ones who are spending practice of law in Montana for at least five years,” a constitu- money.” For VanDyke this was an issue of “free-speech rights tional provision rooted in historical concerns about outsiders. of organizations to say what they believe.” Justice Wheat, on the With the field set, the candidates and allied advocacy groups other hand, criticized Citizens United, siding with his colleague began what would become a million-dollar judicial campaign of and fellow candidate Justice Jim Rice, who argued that “[t]he national note. Surprisingly, however, the amount of campaign state of Montana has a compelling interest in protecting and contributions raised by both candidates was below average preserving a fair and impartial judiciary.” for a Montana Supreme Court race. VanDyke raised $132,999 As negative advertising by independent-expenditure groups from about 700 contributors, 22 percent of whom were lawyers. increased late in the campaign, the VanDyke campaign re- Thirty percent of VanDyke’s contributions came from outside sponded to so-called “dark money groups” funded by “the Montana, the highest rate of out-of-state contributions for same group of wealthy trial lawyers who have poured buckets any Supreme Court candidate on record. Justice Wheat raised of money into Montana Supreme Court elections for decades.” $161,662 from more than 900 contributors, 53 percent of whom It criticized “shadowy groups supported by Montana trial were lawyers. Three percent of Justice Wheat’s contributions lawyers,” claiming that “94 percent of money supporting Mike came from outside Montana. Wheat is from trial lawyers,” and that “83 percent of Mike As state and national advocacy groups spent hundreds Wheat’s lawyer donors have recently had cases in front of him.” of thousands of dollars on attack ads, the candidates’ cam- Justice Wheat’s campaign also attacked independent expendi- paigns became bit players. On Justice Wheat’s side, the trial tures, characterizing them as “[t]hese out of state corporations lawyers’ Montana Law PAC raised more than $161,483 from . . . distorting the truth about me and my record.” Criticism of trial lawyers and law firms. It transferred most of its money to his opponent was secondary to “the Koch brothers and others a new political committee called Montanans for Liberty and who want to buy my seat on the Supreme Court for an inexpe- Justice (“MLJ”), also primarily funded by lawyers, with smaller rienced lawyer.” His closing argument asked voters to “tell these contributions from the MEA-MFT union PAC. In total, includ- corporations that neither your vote nor my seat are for sale.” ing in-kind contributions from the Montana Law PAC, MLJ By the end of the campaign, estimates put total spending at

Page 16 September 2016 around $1.6 million, making it the most expensive judicial race influence, but it also presents an opportunity to revisit the ways in state history. Justice Wheat had $780,981 spent on his side, in which campaign finance reform can mitigate, or at least not including $162,658 in direct contributions. Nearly all of these aggravate, that trend. funds were disclosed and originated in-state, mostly from law- First, Citizens United actually endorsed broader campaign yers. VanDyke had approximately $794,081 spent on his side, finance disclosure. This enables states to require more trans- including $133,818 in direct contributions. While the ultimate parency from conduit organizations like the Republican State source for most of the outside spending in support of VanDyke Leadership Committee’s Montana-based PAC, which disclosed was not disclosed, presumably it originated almost entirely little more than a massive contribution from its parent organi- from out of state, given the dominant national funding sources zation’s aggregation of corporate funds. Improved disclosure is for the RSLC and AFP campaigns. After nearly $300,000 in important not because it enables recusals at the courthouse— candidate contributions and $1.3 million in independent ex- though it may in extreme cases—but because it enables rejoin- penditures, the money race ended in a draw. Justice Wheat won ders on the campaign trail. On both sides of the VanDyke- the general election with 59 percent of the vote, with VanDyke Wheat campaign, the candidates and even the Super PACs gaining just three points since the primary election. used campaign-finance disclosure to make each side’s financial supporters a central issue in the campaign. At the other end of Lessons from the past for the future the money race, higher disclosure thresholds for small donors What most distinguishes the VanDyke-Wheat campaign could boost the influence of constituents and practitioners who from other campaigns is the extent to which the candidates and know the candidates best. Judicial candidates already start with their allies openly aired usually subliminal questions of cam- relatively narrow donor bases, leaving campaigns dependent paign finance, partisanship, and related issues. There is reason on outside spending by a few large donors. In a million-dollar to believe that campaign finance is an especially salient issue to campaign, an anonymous contribution of a $100 poses little risk Montana voters. The colorful history of corporate corruption of corruption, but enough of them will go a long way toward in Montana at the turn of the 20th century, which remained a countering outside spending. powerful force shaping the 1972 Constitutional Convention, re- Second, one of the most important ideas to come out of emerged after Citizens United. In 2012, Montanans overwhelm- Montana’s 1972 Constitutional Convention, in concept if not ingly approved Initiative 166, a symbolic rejection of Citizens in law, is limited public financing of judicial elections. Any United, by a margin of nearly three to one. This history makes new proposal for public financing must take care not to limit Montana a particularly uninviting target for what Montanans expenditures or penalize candidates who self-fund or benefit might consider to be out-of-state dark-money groups. Beyond from independent expenditures. It also must minimize the risk this history, however, Montana’s recent experience may hold of strategic exploitation. Preserving an independent judiciary, policy lessons for future judicial campaigns and elections. an original purpose of judicial elections, may justify the public AfterCitizens United, any reforms to judicial elections expense necessary to finance judicial candidate campaigns. must address the primacy of independent expenditures. For As delegates argued in 1972, there are significant distinctions example, if a latter-day Copper King wanted to elect a latter-day between judicial campaigns and other political campaigns; these Judge Clancy, there would be no need for direct contributions differences might draw even those generally opposed to public or even corporate independent expenditures. A direct interven- financing to support it for judicial elections. While a million tion, such as an independent expenditure of $1 million by a sin- dollars of outside money looks expensive compared to prior gle litigant, may require recusal under the 2009 case of Caperton judicial campaigns in Montana, a million dollars of “inside v. Massey. Instead, the Copper King could run his corporation’s money” in the form of public funding could be a bargain if it treasury funds into a trade organization, through a like-minded helps secure judicial independence. national party committee, and into a state affiliate, thus avoid- There is a final option that would be unthinkable for other ing disclosure. The Copper King also could hedge his bets with public offices: abolish judicial elections by constitutional contributions to a single-candidate Super PAC, signaling his amendment. It has been decades since voters in any state sur- interest in the campaign to related committees that might then rendered their power to elect judges. In light of the origins of double down on the race, and also signaling his support to the judicial elections as a response to political appointees, aboli- candidate. These maneuvers are likely to satisfy ordinary recusal tionists might be careful what they wish for. A critic of Citizens standards, given the nature of “independent” expenditures and United — on grounds that undue influence is far more perva- the aggregation of any one donor’s contributions with others. sive than the U.S. Supreme Court acknowledged — also must Because Citizens United opens new channels for unlimited recognize that appointive selection concentrates that influence campaign spending in judicial and political campaigns alike, on the appointer. The federal model of executive appoint- there are common responses to it. These include more disclo- ment and legislative confirmation for life terms only raises the sure for big-money groups, less disclosure of smaller individual political stakes. The stakes would be even higher for state judges campaign contributions, and public financing for judicial cam- whose general jurisdiction and common law powers allow them paigns. Eliminating judicial campaigns, a solution proposed by a greater impact on state electorates than their federal counter- many frustrated with recent campaign finance developments, parts. Moreover, merit selection still requires retention elections may not resolve the most important concerns about politi- that threaten to compromise judicial independence, such as the cal influence in judicial selection. The trend toward increased spending in judicial campaigns presents the challenge of undue Judicial, page 36 www.montanabar.org Page 17 Feature Article | Neil Haight Pro Bono Award Snowberger honored for her ‘tireless’ commitment to pro bono, equal justice By Joe Menden

Michele Snowberger has long been recognized as one of Montana’s fiercest advocates for access to justice issues. Snowberger, the former longtime Belgrade Municipal Judge, will be recognized for her efforts with the State Bar of Montana’s 2016 Neil Haight Pro Bono Award. She will receive the award at the Awards Luncheon and Business Meeting during the State Bar of Montana’s 42nd Annual Meeting in Great Falls Sept. 22-23. “I’m really honored,” Snowberger said. “It was such a great surprise. I do appreciate it, but I’m just one person who’s working in this arena. I feel really fortunate to have so many colleagues who also feel it is important.” One of those colleagues is former State Law Librarian Judy Meadows, who nominated Snowberger for the award. Meadows was the chair of the former Supreme Court’s Commission on Self-Represented Litigants, which Snowberger served on from 2004 until the commission was folded into the Access to Justice Commission several years ago, on which she continued to serve. Snowberger worked with Meadows and others to create programs, train clerks of court, edit forms, and brainstorm on how to make access to the courts more understandable for low- income people who do not qualify for public defenders. She also found time to keep a pro bono caseload, all while serving in the full-time judge position. “She was tireless with the time she contributed, and never commented when cases would drag on,” Meadows wrote in her nomination letter. “For someone who was already fully committed on so many other levels of access to the courts she should be acknowledged and admired, as I do.” Michele Snowberger, a longtime advocate for access to This is the second time that Snowberger has been honored justice issues in Montana, is the 2016 Neil Haight Pro Bono by the State Bar for her commitment to equal justice issues, Award winner. having previously received the 2010 Karla M. Gray Award for Equal Justice Award, which goes to a judge from any court who has demonstrated dedication to improving access to Montana to be done in the access to justice community. The fact that the courts. Access to Justice Commission is an all-volunteer group makes Snowberger said that there is no end to the work that needs the challenge even more daunting.

She was tireless with the time she contributed, and never commented when cases would drag on. For someone who was already fully committed on so many other levels of access to the courts she should be acknowledged and admired, as I do. “ Judy Meadows, from her nomination letter for Michele Snowberger Page 18 September” 2016 “There’s always a need,” she said. “There’s always a list, a are going through a very difficult time," she added. very long list. We’re doing a pretty good job right now. We Snowberger has spent the last three years working on a could do a better job if there were a full-time person.” major rewrite of dissolution forms as part of the Standing Over the years, the 1988 Pepperdine University School of Committee on Self-Represented Litigants, which she expects to Law graduate has always found ways to contribute to increas- be a major improvement. ing access to justice for lower-income people going back to her She also has volunteered her time working on State Bar first job out of law school as a public defender in Cook County, publications that further public understanding of the law, such Illinois. as the “Guide to Turning 18” and “Guide to the Courts.” After moving to Montana in 2000, she became Belgrade Snowberger recently moved from the bench to her cur- Municipal Judge in 2002 and quickly became involved in the rent position in state government as Driver Services Bureau access to justice arena. Chief for the Montana Department of Motor Vehicles. In the As a member of the Limited Scope Committee, she was position, Snowberger handles all motor vehicle license creden- instrumental in the process of modifying the ethics rules to al- tialing and manages 93 employees in bureaus across the entire low limited scope practice in Montana. She said she personally state. finds limited scope to be helpful in her practice, allowing her to The new responsibilities have required her to step back discuss with a client how to file paperwork for a parenting plan a bit from her work in the access to justice community. She or preparing the client for a parenting plan mediation. is no longer a member of the Access to Justice Commission, Through her work with the Access to Justice Commission, and she says she is not technically a member of the Standing she helped secure funding for the Montana Self Help Centers. Committee on Self-Represented Litigants. "The need for that is pretty significant," she said. "When you But she will continue to stay involved in finding solutions think about if something is not handled well at those initial to Montana’s access to justice issues, she said, and she contin- cases, an individual could spend years trying to recover from it. ues to take on a pro bono caseload. It can have a very long-term effect on that family, particularly “We’re not going to be able to do everything, but we can do if one party is represented and one is not. To be able to have a things that will help people,” she said. “I just am excited about little bit of information and to know this is what happens at a where we are and where we can get to. It’s a good time to be a hearing, and here’s a form that will help you goes a long way. lawyer.”

"I thinkKjuras-16201MTlawyerAd-FIN.pdf we’re improving the lives of 1 Montana 3/16/16 families 4:39 PM who

” www.montanabar.org Page 19 REGISTER AT MONTANABAR.ORG

HOT TOPICS CLE SCHEDULE THURSDAY, SEPT. 22: 8-11:40 A.M., 2-5 P.M.; FRIDAY, SEPT. 23: 8 A.M. TO 12:15 P.M.

THURSDAY, SEPT. 22 8:45 to Wealth Planning: Maxi- Noon to 2 p.m. — Awards Lunch/Business 9:30 mizing Tax Advantages 8:00 to Supreme Court Update Meeting — See details, on facing page a.m. of Charitable Giving and 8:45 a.m. Part I — Supreme Court Endowments. What You Rule Changes Beth 2:00 to Security Breach Primer: Should Be Telling Your Brennan, Brennan Law & 3:15 p.m. What to Do in the Event of a Clients. What You Should Mediation Breach (Ethics) Dana Hupp, Worden Thane; and Sherri Be Doing Yourself 8:45 to Federal Rules Changes Davidoff, LMG Security John Mudd, Blewett 9:30 a.m. You Need to Know, Even if School of Law; and Bjarne You Practice Only in State 3:15 to Break Johnson, Church, Harris, Court Brian Carl Smith, 3:30 p.m. Johnson and Williams Smith Law 3:30 to Transitions: Responsibilities 9:30 to Indian Country and the 9:30 to 4:15 p.m. When Changing or Closing Break 10:00 New Era of Trust Reform 9:40 a.m. a Firm a.m. Presented by Deb DuMon- Robert Phillips, Garlington, 9:40 to tier, U.S. Dept. of Interior Supreme Court Update Lohn & Robinson 10:10 Part II, Beth Brennan 10:00 Break a.m. 4:15 to State District Courts Year in 5:00 p.m. Review The Honorable Kim a.m. 10:10 to We’ve Made Pro Bono Christopher 11:40 Easier — Here’s How 10:15 to Supreme Court Oral Argu- a.m. Michelle Potts and Angie 10:45 ment Introduction FRIDAY, SEPT. 23 Wagenhals,MLSA a.m. Professor Michelle Bryan, 10:40 to What Do You Do When You 8:00 to Tax Reform and the Blewett School of Law 11:40 Goof (Ethics), A vignette by 8:45 a.m. Presidential Candidates’ 10:45 to Supreme Court Oral Argu- a.m. the State Bar of Montana Plans 12:15 ment Claimant: United Professionalism Committee Presented by Professor p.m. States of America, (Bureau J. Martin Burke, Blewett of Land Management) 11:40 Break in the Exhibitor Hall School of Law Objectors: Barthelmess Ranch Corporation; et al.

Page 20 September 2016 ANNUAL MEETING 2016 Highlights Local Bar Reception — Wednesday, Sept. 21, 5:30 p.m., The Celtic Cowboy, 116 1st Avenue South. Enjoy an evening of camaraderie hosted by the members of the Cascade County Bar Association. Awards Lunch/Business Meeting — Thursday, Sept. 22, Noon, Holiday Inn Ballroom. We will honor Michele Snowberger, winner of the 2016 Neil Haight Pro Bono Award, and winners of Distinguished Service Awards. President's Reception Thursday, September 22, 5:30- 6:30 p.m., Holiday Inn. Join us for a reception and listen to the FREE sweet sounds of the Great Falls Symphony’s Cascade Quartet. Free to all Annual Meeting attendees. FASTCASE Note: The site of the President's Reception and the banquet WORKSHOPS have been changed. Awards Banquet, Thursday, September 22, 6:45 p.m. at the Get the most out of your FREE Holiday Inn Ballroom — We will honor the winners of the the William Fastcase legal research member J. Jameson Award, Robert M. Carlson; the George L. Bousliman benefit by attending a training Award, Gary Bjelland and Ed Higgins; and the Frank I. Haswell workshop during the Annual Meeting. Award, Shaun Thompson; along with a special presentation • One-on-one, hands on training honoring 50-Year Membership. from experienced Fastcase users Supreme Court oral argument, Introduction at 10:15 a.m., • Try out your own research task argument at 10:45 a.m., Friday, Sept. 23, Holiday Inn Ballroom — The while we guide you and answer Supreme Court schedules approximately 30 cases per year for oral questions argument. Once again this year, one of those cases will be argued at the Annual Meeting. Attend the introduction and argument to • An official trainer from Fastcase earn CLE credit. The case this year is: United States Bureau of Land will be on hand to answer your Management v. Barthelmess Ranch. In this case, a group of Bureau toughest questions of Land Management permittees challenge a Water Court determi- • Get a sneak preview of Fastcase 7 nation that six stock water claims on the Beaver Creek tributary of • More than one-third of State Bar Milk River Basin in south Phillips County are owned by BLM. of Montana members already use Fastcase's comprehensive, trusted legal research tool. You can too. IMPORTANT MEETINGS Free. No strings attached. Wednesday, September 21 (All meetings at the Great Falls Holiday Inn) Workshops are available the 1 to 3 p.m. Executive Committee Meeting following times: Thursday, Sep- 3 to 5 p.m. Board of Trustees Meeting 2 to 4 p.m. Past Presidents Committee Resolutions Meeting tember 22– 8:30 to 11:30 a.m. and 2:00 to 5:00 p.m.; Friday, Sep- Thursday, September 22 tember 23 – 8:00 to 10:00 a.m. Noon to 2 p.m. Awards Lunch/Business Meeting

www.montanabar.org Page 21 Feature Section | Natural Resources, Energy & Environment Law Minimizing liability when purchasing potentially contaminated property By Mac Smith

Imagine this – a client comes to you to review some paper- Natural Resources, Energy & work. The client says she just found a “great deal” on a piece of property that could be used to expand the family manufacturing business. The property was used as an industrial site in the past. Environmental Law Section: Some bells should go off in your head – this property may not be as great of a deal as it appears, as it may be polluted with the Trends in Environmental Law residue of its industrial past. But that does not mean your client should just walk away. Purchasing a property like this can Earlier this year, the State Bar of Montana's Natural reduce the purchase price significantly, and revitalizing proper- Resources, Energy & Environmental Law Section held its ties helps make Montana a better place to live. As an attorney annual CLE in Helena entitled “Trends in Environmental you will need to explain the risks of the purchase and manage Law.” potential liability should your client purchase the property. The CLE brought together attorneys from various backgrounds to discuss current and emerging issues in the Liability under CERCLA and CECRA practice of environmental law in Montana. Some of the The Comprehensive Environmental Response, authors have since volunteered to summarize their talks in Compensation, and Liability Act (CERCLA) is otherwise the articles contained here for practitioners who did not known as the Superfund law. The Ninth Circuit aptly called attend the CLE. CERCLA “a black hole that indiscriminately devours all who 1 The articles on these pages discuss the following topics: come near it.” This is because liability under CERCLA is strict; n 2 Minimizing liability when purchasing contaminated joint and several; and has been applied retroactively. There are property, by Section Chair Mac Smith (see article on this four types of potentially responsible parties under CERCLA: page). 1) a current owner or operator; n New developments in water discharge permitting, by 2) an owner or operator at time of disposal of hazardous Vicki Marquis of Crowley Fleck in Billings (see article on substance; page 24) 3) someone who arranged for treatment or disposal of haz- n 3 Innovations in the Endangered Species Act in ardous waste; and Montana, by Zach Zipfel, Caroline Sime, Martha Williams 4) someone who transported hazardous waste. and Sonya Germann (see article on page 25). In other words, even if your client had no role in causing the For course materials or more detailed notes you may contamination, the client may be liable as the “current owner contact the author. or operator” of the contaminated site. This could include being on the hook for some or all of the cleanup costs, as well as 6 the associated costs of defending against litigation to facilitate seeks to clean up. While CECRA is similar to CERCLA in the cleanup. The policy for this seemingly harsh rule is that the many ways, there are particular differences in the language of cleanup should be borne by those tied to the site, rather than each Act, as well as the application of each Act; for example, the taxpayers.4 “arranger” liability is more broadly construed under CECRA than CERCLA.7 Also, petroleum is a hazardous substance that The same general four classes of responsible parties exist un- 8 der Montana’s state version of the Superfund law, the Montana can trigger superfund liability under CECRA but not CERCLA. Comprehensive Environmental Cleanup and Responsibility And while CERCLA and CECRA are the focus of this article, Act (CECRA).5 CECRA is a statutory mechanism for remedi- keep in mind that other federal and state environmental statu- ating hazardous substances at sites not addressed by federal tory and common laws may apply to a transaction such as this. Superfund, and has its own priority list of properties the state How to minimize liability If there is suspected contamination at the site, the first step 1 Long Beach Unified School Dist. v. Dorothy B. Godwin California Living Trust, 32 6 Mont. Code Ann. § 75-10-705, et seq. F.3d 1364, 1366 (9th Cir. 1994). 7 Compare Mont. Code Ann. § 75-10-715(1)(c) with 42 USC § 9607(a)(3); see also 2 Id. State ex rel. Dept. of Environmental Quality v. BNSF Ry. Co., 2010 MT 267, 358 Mont. 3 42 USC § 9607(a). 368, 246 P.3d 1037. 4 Long Beach at 1369. 8 Montana Petroleum Tank Release Compensation Bd. v. Crumleys, Inc., 2008 MT 2, 5 Mont. Code Ann. § 75-10-715(1) 341 Mont. 33, 174 P.3d 948.

Page 22 September 2016 Feature Section | Natural Resources, Energy & Environment Law is to conduct due diligence on the property conditions. A little is not buying the contaminated portion of the property. The money and time spent up front can potentially save a great buyer may also want to purchase the property through a limited deal of money and headaches later on. The proper first step liability corporation or other entity, rather than personally, or is to conduct a Phase 1 Environmental Site Assessment (ESA) through its existing corporate entities. While Superfund liabil- that meets the All Appropriate Inquiry (AAI) Standard pro- ity is onerous, it does not in and of itself “pierce the corporate mulgated by the EPA. Look to 40 CFR Part 312 and ASTM veil.” Standard 1527-13 for the specific standards required for an There are some specific provisions the client may try to AAI. Some of these regulatory requirements include conduct- negotiate into the contract. A buyer will want to allocate ing the inquiry within a year prior to the property acquisition; responsibility for any known and unknown conditions at the using an “environmental professional,” as defined in 40 CFR site to the seller. The buyer will want warranties, including that § 312.10(b); interviewing past and present owners, operators, the seller disclosed documents and site conditions; that there and occupants; searching for recorded environmental cleanup are no pending legal actions against the seller for conditions liens; reviewing government records; and visually inspecting at the site; that the seller is complying with any permits and the property; among various other requirements.9 If the Phase 1 can transfer them, if applicable; that the property is not on the ESA detects potential contamination, you may consider a Phase national or Montana CECRA priority list; and that there was no 2 ESA, which includes sampling and laboratory analysis, such historic storage or release of hazardous waste on the property. as taking soil samples or groundwater monitoring. The seller will have different interests, so the parties will need to Essentially, an environmental review acts as a snapshot in negotiate until they both feel comfortable with the transaction. time. It can help alert the parties to the various issues that need You may try to negotiate an indemnity provision requiring to be addressed before closing. It can also provide a baseline if the seller to assume a legal defense and reimbursement of costs there is a later dispute over site conditions. Even more impor- if there is contamination. But bear in mind that an indemnity tantly, it can help form a basis for liability protection under from an insolvent seller is of little value. On the other hand, the CERCLA and CECRA. For example, two of the requirements seller may try to negotiate an “as is” clause or a release. An “as for obtaining CERCLA protections as a "bona fide prospective is” clause may limit the buyer’s rights to later sue the seller un- purchaser" are that the disposal occurred prior to acquisition, der the contract, but it does not eliminate the seller’s statutory and the buyer made all appropriate inquiries into previous liabilities under CERCLA and CECRA should the buyer be- ownership and uses of the facility in accordance with the regu- come insolvent – that is, parties may allocate Superfund liability latory standards.10 Likewise, under CECRA, to obtain innocent amongst themselves, but the state and federal agencies charged landowner protections a person must show that he or she did with enforcement of CECRA and CERCLA are not bound by not know and had no reason to know about the contamination those private agreements. at the time of acquisition.11 In turn, establishing this lack of One other general mechanism for shifting environmental knowledge requires an “all appropriate inquiry” into the previ- liability is insurance. While older insurance policies may pro- ous ownership and uses of the property.12 When advising your vide coverage for pollution, newer commercial general liability client, you should read these statutes and become familiar with policies usually contain an “absolute pollution exclusion.” As the requirements for establishing these defenses, along with such, there is likely little or no insurance coverage for pollution other available defenses, to CERCLA and CECRA. issues. Still, there are some insurance products the client can Sometimes the EPA or DEQ may provide assurances prior purchase. One would be a pollution legal liability policy (PLL), to the purchase. EPA may be willing to issue assurances that it which in Montana is generally a surplus line product negoti- will not take further action at the property, but such an assur- ated specifically to the insured’s needs. PLLs can be tailored to ance often carries caveats. DEQ may be willing to negotiate a cover the specific risks to which your client may be exposed. Prospective Purchaser Agreement, limiting the client’s potential For example, PLLs can cover property damage, pollution liability after the purchase. There is also a formalized process events, defense costs, and property remediation costs. Another under Montana law to encourage voluntary cleanup of property PLL product is a cost-cap policy, which can cover cleanup cost whereby a party may develop a cleanup plan in exchange for overrun. 13 liability protections. Conclusion When negotiating the purchase contract with the seller, Buying a potentially contaminated property can be a scary there are other ways to minimize liability. Obviously, the client and uncertain proposition for your client. But with your care- should seek a reduced price for the property. The client may ful assistance and consideration of the general issues above, you request that the seller remedy the issues prior to the closing can help minimize the client’s exposure while assisting on such or that the property boundaries be adjusted so that the client a transaction. 9 40 CFR §§ 312.20 – 312.31. 10 42 USC § 9601(40). Mac Smith is a partner at Doney Crowley P.C. in Helena. His 11 Mont. Code Ann. § 75-10-715(6)(a) practice focuses on civil litigation, particularly in the areas of envi- 12 Id. § 75-10-715(6)(c). ronmental/natural resources, real property, and business law. 13 See Montana Voluntary Cleanup and Redevelopment Act, Mont. Code Ann. § 75-10-730, et seq. www.montanabar.org Page 23 Feature Section | Natural Resources, Energy & Environment Law Many technical, legal factors work together in water discharge permitting process By Vicki Marquis

Most industries have to handle and get rid of water in some manner – whether it is process water, cooling/heating water, waste water or just stormwater run-off. When water or waste is discharged from a discernible, confined, and discrete place — such as a pipe or a ditch into state waters or into a place where it will reach state waters, it is called a point source discharge. Such discharges are subject to Montana Discharge Pollutant Elimination System (MDPES) permits issued by the Montana Department of Environmental Quality (DEQ). This article discusses some of the regulatory pieces of MDPES permits and highlights the importance of technical and legal perspectives working together throughout the process. Technology based effluent limitations (TBELs) Most often, TBELs come from federal rules adopted by Sonja Langford/Stocksnap Montana (See Mont. Code Ann. § 75-5-305), but they can also Discharges from a confined and discrete place into state come from the Board of Environmental Review (Board) or waters are subject to the Montana Discharge Pollutant from the DEQ permit reviewer. TBELs are industry specific Elimination System permits. Some of the regulatory piec- and apply to both existing and new discharges. Notably, es of these permits are discussed in this article. TBELs also apply to discharges that do not directly enter a water body, but instead first pass through a treatment facility, such as a municipal wastewater treatment system or other pub- standard still requires a Use Attainability Analysis. However, licly owned treatment Works. TBELs specify numeric limits for other uses, including public water supply, agriculture, and narrative requirements that are based on Best Practicable industry and navigation, the Board can now remove or revise a Technology, Best Conventional TechnologyBest Management use through rulemaking, without a Use Attainability Analysis. Practice, Best Available Technology, or Best Professional This allows the Board to create subcategories that may have Judgment. See 40 C.F.R. Chapter I, Sub-Chapter N. less stringent standards – for example, agriculture without consumption by livestock or agriculture without irrigation – or Water-quality-based effluent limitations (WQBELs) from create subcategories with more stringent standards for spe- Water Quality Standards cial, unique, or sensitive species or habitats. Additionally, any WQBELs are based on the state’s water quality standards, party, not just the DEQ, can now present information to the which can be numeric or narrative. The Board has classi- Board indicating that a reclassification may be appropriate. fied each water body in the state as supporting specific uses. Those uses then correspond to certain water quality standards. Additional water quality standards Generally, water bodies classified as supporting more uses are Montana, unlike many other states, has enacted addi- regulated with more water quality standards than water bodies tional standards to address salinity and nutrients. The salinity classified as supporting fewer or less particular uses. In all cases standards are written in terms of electrical conductivity and so- however, existing and designated uses must be supported and dium adsorption ratio and only apply to specific watersheds in downstream water-quality standards must be maintained. See southeast Montana where the soils and water naturally contain Admin. R. Mont. Title 17, Chapter 30, Sub-Chapter 6. elevated levels of saline. Admin. R. Mont. 17.30.670. Nutrient Previously, the only way to change a water body’s use clas- standards are established in rule and in DEQ Circular 12A. sification (and therefore the applicable water quality standards) Admin. R. Mont. 17.30.631. A variance procedure exists for the was through a Use Attainability Analysis — a process that nutrient standards, but is primarily designed for municipalities involves significant scientific study and public involvement. and is subject to periodic review. Admin. R. Mont. 17.30.660, New federal regulations and recent changes to Mont. Code DEQ Circular 12B. Ann. § 75-5-302 have simplified the process in some cases. For the federal primary uses of aquatic use, wildlife and recreation, any reclassification that results in a less stringent water quality Discharge, page 26

Page 24 September 2016 Feature Section | Natural Resources, Energy & Environment Law Montana leading the way in many areas of Endangered Species Act innovations

By Zach Zipfel, Carolyn Sime, and Sonya Germann fish movement. In its 10 years, the Big Hole CCAA has enrolled over 150,000 acres of private land, resulting in improved riparian There can be a perception that the Endangered Species Act is health, better stream flows, and more than 60 miles of new habitat. inflexible. Yet in reality, it allows for innovation and encourages Once a species has declined to the point where it warrants list- emerging conservation practices. The wildlife presentations at ing and protection under the Endangered Species Act, flexibility the Trends in Environmental Law CLE highlighted areas where and creativity to address threats and recover species are severely Montana leads the way in Endangered Species Act innovation, curtailed. The legal and administrative process is fixed. Required demonstrating species conservation in creative ways. Mitigation, mitigation might stem declines or assist recovery, but even then candidate conservation agreements and habitat conservation opportunities are constrained. plans are three emerging tools that have the goal of conserving Mitigation can proactively address and ameliorate threats to species, adhering to the Endangered Species Act, and innovating at-risk species and the ecosystems upon which they depend before how it works on the ground for those who live and work in our listing is ever warranted. While mitigation is a broad concept, state. it boils down to taking measures to avoid, minimize, reclaim or The ESA has been a powerful tool in conserving threatened restore, and compensate for direct, indirect, or residual impacts and endangered species since its inception. Sometimes, however, to environmental resources prior to project implementation. the ESA’s strengths Compensation involves paying for the benefits derived from may serve as a dis- ecosystem services in a market-based transaction to replace lost incentive for private ecosystem services or functions. landowners whose Since 2013, seven federal policy initiatives were launched to property harbors encourage mitigation (and possibly require it for federal projects).1 “candidate species” – This creates opportunities for and rewards voluntary conservation those species identi- actions taken before a species is at risk or considered for listing. fied by the U.S. Fish Federal policy defines the marketplace rules of the road, provides & Wildlife Service regulatory certainty and predictability, and seeks to spur public- (Service) as “candi- private partnerships by recognizing that natural resources are an dates” for listing. In asset. Policies seek to attract private capital to create or support Tom Koerner,/USFWS order to enlist the mitigation markets that facilitate permitting and landscape-scale The greater sage grouse was once a help of those land- conservation. Specifics may vary, but all compensatory mitigation candidate for Endangered Species Act owners to conserve models are transactional in some way. Biological capital, social protection in the West, before a focus candidate species on habitat led to a "not warranted" before listing be- Endangered, page 31 finding. comes necessary, the Service has created the 1 Sec. Or. 3330, Improving Mitigation Policies and Practices of the Department Candidate Conservation Agreement with Assurances (CCAA). of the Interior (Oct. 31, 2013) (available at: https://www.doi.gov/sites/doi.gov/ A CCAA is an agreement between the Service and a private files/migrated/news/upload/Secretarial-Order-Mitigation.pdf); J.P. Clement, et landowner. In exchange for agreeing to take proactive steps on his al, A strategy for improving the mitigation policies and practices of the Depart- or her land to help conserve the species, the Service “assures” the ment of the Interior. A report to the Secretary of the Interior from the Energy and Climate Change Task Force, Washington, D.C. (Apr. 8, 2014) (available at: https:// landowner that if the species is listed in the future, the landowner www.doi.gov/sites/doi.gov/files/migrated/news/upload/Mitigation-Report-to- will be protected from additional land-use restrictions that may the-Secretary_FINAL_04_08_14.pdf); 79 Fed. Reg. 42525 (July 22, 2014) (Draft have otherwise been imposed through the ESA. The landowner Policy Regarding Voluntary Prelisting Conservation Actions); U.S. Department of Interior, 600 DM 6 Departmental Manual on Implementing Mitigation at the may agree, for instance, to forgo logging a section of property or Landscape Scale (Oct. 23, 2015) (available at https://www.doi.gov/sites/doi.gov/ to restore important habitat for the candidate species. The Service files/uploads/TRS%20and%20Chapter%20FINAL.pdf); Pres. Memo., Mitigating provides “assurances” through an “enhancement of survival per- Impacts on Natural Resources from Development and Encouraging Related Private mit” under section 10 of the ESA. Investment (Nov. 3, 2015) (available at https://www.whitehouse.gov/the-press- office/2015/11/03/mitigating-impacts-natural-resources-development-and- Montana Fish, Wildlife & Parks has entered a “programmatic” encouraging-related); [U.S. Department of] Interior launches Natural Resource CCAA along the Big Hole River to assist in recovery of Arctic Investment Center to support water, species, and habitat conservation, U.S. De- grayling, a candidate species. Through the Big Hole CCAA, FWP partment of Interior News Rel. (Dec. 15, 2015) (available at https://www.doi.gov/ biologists work with individual landowners to restore stream pressreleases/interior-department-announces-initiative-spur-innovation-invest- ments-support-water); 81 Fed. Reg. 12380 (March 16, 2016) (Proposed Revisions to flows, enhance riparian areas, and remove instream barriers to the U.S. Fish and Wildlife Service Mitigation Policy). www.montanabar.org Page 25 some of the pollutant load to point sources, some to nonpoint Discharge from page 24 sources, and leaves some as a margin of safety. Although the DEQ could previously request an MDPES Nondegradation limits for high-quality water bodies permit applicant to pay for a needed TMDL, prior to the 2015 Permit WQBELs may also result from a nondegradation Legislature, it was not clear when that needed TMDL would review. Nondegradation, or anti-degradation as it is called be completed. Additions to Mont. Code Ann. § 75-5-702 in the federal laws and rules, is a layer over all water quality now require the DEQ to complete the TMDL within 180 days standards. In Montana, if a water body meets a water quality of receipt of the permit application or provide an alternate standard for a specific parameter, then it is considered a high timeframe for TMDL completion. The DEQ and the applicant quality water body and no degradation, or pollution of any can reach a mutually agreeable timeframe for TMDL comple- amount, is allowed. This protects a wider set of water bodies tion, or, if the applicant disagrees with the alternate timeframe than the federal requirement, which only prohibits degrada- proposed by the DEQ, the applicant may appeal to the Board. tion of water bodies that support the priority uses of protection and propagation of fish, shellfish and wildlife and recre- The No Purer Than Natural and Nonanthropogenic ation in and on the water. Statutes Montana has exempted some nonsignificant activities from Finally, Montana, like other states, recognizes that “it is nondegradation review, including nonpoint source discharges, not necessary that wastes be treated to a purer condition than agricultural use of chemicals in accordance with applicable the natural condition of the receiving stream.” Mont. Code laws, short-term changes caused by recreation, and other Ann. § 75-5-306(1). Further, the 2015 Legislature enacted a discharges that have a low potential for harm to human health new statute requiring that the DEQ “may not apply a standard or the environment after consideration of the quantity and to a water body for a water quality that is more stringent than strength of the pollutant, the length of time the degradation the nonanthropogenic condition of the water body.” Mont. will occur, and the character of the pollutant. Mont. Code Code Ann. § 75-5-222. The statute also requires that when the Ann. §§ 75-5-301(5)(c); 75-5-317. Additionally, the Board has standard is more stringent than the nonanthropogenic condi- established criteria for determining nonsignificance for several tion, the nonanthropogenic condition becomes the standard. parameters, including flow and toxic and harmful param- However, the standard must still be implemented in a manner eters. Mont. Code Ann. § 75-5-301(5)(c); Admin. R. Mont. such that downstream water quality standards will be main- 17.30.715. tained. Mont. Code Ann. § 75-5-222(1). The DEQ has recently The exemptions for nonpoint sources and the application used modeling based on extensive data collection to determine of nondegradation review outside, not inside, of mixing zones the natural condition of a proposed receiving water body. have been upheld. American Wildlands v. Browner, 260 F.3d Additionally, the DEQ has convened a “SB325 Rulemaking 1192 (10th Cir. 2001). However, an exemption for well pump Work Group” to help draft rules that will implement the new test discharges was held in violation of Montana’s constitu- “nonanthropogenic” statute. Determination of water qual- tional environmental rights because the discharge contained ity standards based on these statues is likely to require com- a carcinogen at a level greater than that of the receiving water prehensive data collection prior to any discharge, as well as body. Mont. Env. Info. Center v. DEQ, 1999 MT 248, ¶ 79. complex analysis and modeling. Further, in Clark Fork Coalition v. DEQ, 2008 MT 407, ¶ 38, Conclusion the court held that the DEQ should have considered a statu- MDPES permits require consideration of multiple statutes torily exempted discharge’s duration, volume and treatment and regulations as well as scientific analysis of both the receiv- needs before concluding that it was nonsignificant. ing water body and the proposed discharge. Discharge limits When the nonsignificance criteria cannot be met, come from both federal and state law and will be based on the Montana’s laws and rules provide an Authorization to type of industry, the estimated quality of the discharge, and Degrade. However, the process has not been used in recent the location and existing quality of the receiving water body. memory. It requires the applicant to prove that there is no ec- Additionally, the permit process may require nondegradation onomically, environmentally, and technologically feasible way review or adoption of a total maximum daily load. Another to not degrade the water body, a showing that the economic consideration may be application of Montana’s No Purer than and social benefit exceeds the costs to society of allowing the Natural and Nonanthropogenic statutes, which both involve degradation, protection of existing and anticipated water uses, extensive data collection and analysis. To navigate all of these and periodic review. Mont. Code Ann. § 75-5-303(3). issues, both technical and legal perspectives will be important Limits for impaired water bodies throughout permit application, issuance, and compliance. For those water bodies that do not meet the water quality Vicki Marquis is an associate attorney at Crowley Fleck, PLLP, standard for certain parameters and therefore do not require focusing primarily on environmental, mining, oil & gas and water nondegradation review for those parameters, compliance with law. Vicki has worked as a chemist in a variety of laboratories, a total maximum daily load (TMDL) is required. TMDLs es- as an enforcement specialist for the Montana Department of tablish a pollution load allocation for the impaired water body Environmental Quality, and as the coordinator for the Missouri with the goal of eventually bringing the water body into com- River Conservation Districts Council. She earned a B.A. in chem- istry from Gonzaga University and received her Juris Doctor with pliance with the water quality standard. Mont. Code Ann. § honors from the University of Montana School of Law. She also 75-5-703(1). Much like dividing up a pie, the TMDL allocates serves as a Judge Advocate in the Montana Army National Guard.

Page 26 September 2016 www.montanabar.org Page 27 Feature Article | Tax Law Are insurance bad faith recoveries taxable? Rulings provide no cut-and-dry answers By Robert W. Wood Supreme Court to hear bad faith claim argument Are insurance bad faith litigation recoveries taxable? The The Montana Supreme Court will hear an oral argument annoying answer is that it depends. This answer may be a bit in an appeal of a bad faith insurance recovery claim on less annoying with a brief description of what a bad faith claim Wednesday, Sept. 28. Details on the oral argument in West v. may entail. It may be a tort or a contract claim, depending on USAA, which is not connected to any of the cases discussed the facts and the jurisdiction. in this article, can be found on page 11. It may be brought against one’s own insurance carrier, or sometimes, even against someone else’s carrier. A common claim is that the insurance company defendant did not proceed plaintiff’s judgment, the tavern assigned to the plaintiff its rights appropriately to pay a claim, thus causing the plaintiff addi- to pursue a bad faith claim against Insurance Company. The tional damages. In that sense, not unlike a legal malpractice agreement between the tavern and the plaintiff provided for the claim against a lawyer, one key question will predate the bad assignment of all claims possessed by the tavern and the tavern faith case. manager against Insurance Company related to the bad faith That is, what was the underlying issue (which may or may claims. Thus, the injured plaintiff ended up with those claims. not have been litigated) that gave rise to the insurance claim? The assignment agreement provided that within 30 days of Most tax professionals will start to imagine a physical injury ac- the termination of the litigation against Insurance Company cident where the insurance company pays too little too late, and (whether by settlement or judgment), the judgment against the later must pay more for the same injuries via a bad faith claim. manager and the tavern (relating to plaintiff’s personal injury That is a useful (and common) example to bear in mind. claims) would be marked “satisfied.” Eventually, the plaintiff entered into a settlement agreement calling for the insurance 2009 IRS Ruling company to pay $Z to plaintiff and his attorneys. The settlement The most important authority is an IRS private letter ruling agreement provided that upon receipt of payment, plaintiff that technically is not authority, since letter rulings are non- would cause the bad faith insurance litigation to be dismissed precedential. It was a bombshell ruling when it was issued in with prejudice, and cause the personal injury judgment against 2009, and it suggests that some bad faith recoveries are tax free. the tavern manager and the tavern to be marked as satisfied. Some case law, on the other hand, suggests that some taxpayers may be reading the ruling too broadly. Underlying Case Tax Free In Letter Ruling 200903073,1 a plaintiff had been employed The IRS starts its analysis in the Letter Ruling with the origin as a construction worker, and in the course of his employ- of the claim doctrine. Citing Raytheon Production Corp v. ment, was struck by a drunk driver. The drunk driver managed Comm’r,2 the IRS states that the critical inquiry here is in lieu of a tavern, and had served himself liberally while on duty. The what damages were awarded. The plaintiff may have recovered plaintiff was severely injured, and sued the driver/manager as against the insurance company, but the recovery had its origin well the tavern that had employed him. in the settlement of the court cases against the tavern manager The plaintiff received a jury verdict consisting of compen- and the tavern. satory damages for his personal physical injuries, medical Indeed, the plaintiff was merely trying to collect on the expenses, pain and suffering, lost earnings, plus punitive dam- plaintiff’s judgment against the manager and the tavern for ages. After post-trial motions, the jury verdict was reduced to damages awarded on his personal physical injury claim. “But $X in compensatory damages and $Y in punitive damages. The for” the personal physical injury claim and the plaintiff’s rights defendants appealed. as an assignee, the plaintiff would be receiving nothing from Prior to the judgment, the insurer for the tavern (Insurance the insurer for the tavern. Quite literally, the plaintiff was only Company) had rejected an opportunity to settle for policy limits receiving money from Insurance Company because the plaintiff under the tavern’s policy. Under state law, the tavern as policy was injured. holder had a cause of action against the insurance company Thus, the IRS concluded that the Section 104 exclusion if it acted in bad faith in failing to settle the claim. The tavern applied. Interestingly, the IRS noted that the exclusion would believed it had a cause of action against Insurance Company. not apply to any amounts the plaintiff received that resulted Thus, as part of an agreement to stay the execution of the

1 January 16, 2009. 2 144 F.2d 110 (1st Cir. 1944), cert denied 323 U.S. 779 (1944).

Page 28 September 2016 from the punitive claims. Punitive damages are always taxable.3 petitioner sought compensation ‘on account of ’ the denial of Letter Ruling 200903073 expresses no opinion on allocating his long-term disability benefits, not for any physical injuries or between compensatory and punitive damages. physical sickness.”6 On the surface, this reasoning might make it difficult for bad Contract vs. Tort? faith recoveries to qualify under IRC Section 104(a)(2). Indeed, In bad faith insurance cases, there is an underlying cause when taxpayers claim that bad faith recoveries are excludable of action for which the taxpayer is seeking redress. It might be from gross income under IRC Section 104(a)(2), the personal a personal physical injury action or something else. It may be physical injury or physical sickness almost always concerns viewed as a contract claim relating to the insurance policy, or as the facts that gave rise to the insurance claim, rather than the a tort claim related to Insurance Company’s operations and its denial of the claim itself. Put differently, relatively few bad faith treatment of the plaintiff. claimants can assert that the insurance company actually caused The IRS has usually viewed them as contract actions. them physical harm. Regardless, it is relevant to inquire into the treatment of dam- But some can claim that the insurance company’s delays ages that, at least in part, often relate to the original act produc- exacerbated their physical injuries and physical sickness. In ing the underlying insurance claim. Not surprisingly, most that kind of case, the argument for excluding all or part of the bad faith insurance cases relate to the mishandling of insurance eventual bad faith recovery can be strong. In Ktsanes, though, claims. the Tax Court concludes the opinion by stating that: Recent Cases “[t]he $65,000 that [Ktsanes] received in settlement of his suit essentially represented a substitute for what he would have Perhaps as a result of the 2009 letter ruling, some taxpayers received had his claim been approved. Under these circum- may think “tax free” when they hear “bad faith.” For example, stances, no part of that payment is excludable under any subdi- in Ktsanes v. Commissioner,4 the taxpayer worked for the Coast vision of IRC § 104(a).”7 Community College District (CCCD) in Orange County, This language, emphasized by its placement at the very end California. In connection with his employment, Ktsanes of the opinion, seems to contradict the court’s previous lan- participated in a group long-term disability insurance program guage. It looks through the insurance claim to the facts that managed by Union Security. gave rise to the insurance claim. Moreover, it implicitly asks The premiums were paid by Ktsanes’ employer, CCCD, and how the payment would have been taxed had the insurance were not included in Ktsanes’s income. Ktsanes developed claim been paid without dispute. Bell’s palsy, which caused him to be unable to continue working The taxation of an undisputed payment would surely depend for CCCD. He filed a claim for long-term disability with Union on the facts that gave rise to the insurance claim. In Ktsanes, Security, which the insurance company denied, saying that the court seems bothered by IRC Section 104(a)(3). Notably, Ktsanes was not sufficiently disabled to qualify. Ktsanes did not raise this subsection as a basis for excluding the Ktsanes filed a bad faith claim against Union Security. The settlement payment from his income. claim was settled for $65,000. Ktsanes claimed the settlement Under IRC Section 104(a)(3), amounts received through payment was received on account of a physical sickness (the accident or health insurance for personal injuries or sickness Bell’s palsy), and therefore excluded it from his gross income are excludable from gross income. The key qualifier, of course, under Internal Revenue Code Section 104(a)(2). is that the premiums for the insurance must not have been paid When the IRS disagreed, he also argued that the group by the insured’s employer as a tax-free benefit to the insured. long-term disability insurance program was equivalent to a Ktsanes’ long-term disability premiums were paid by his em- workmen’s compensation payment, so was excludable under ployer, and were not included in his income. Thus, he clearly IRC Section 104(a)(1). The Tax Court rejected both arguments did not qualify for tax-free treatment under Section 104(a)(3). and found the settlement to be taxable. The Tax Court con- Had his insurance claim been paid without dispute, it would cluded that Ktsanes’ damages were received “on account of” the presumably have been taxable. insurance company’s refusal to pay the insurance claim and not Read in this light, Ktsanes is much more easily reconciled the Bell ’s palsy that gave rise to the insurance claim. The court with the other authorities on bad faith litigation. The Tax reasoned: Court may have been preventing insurance payments that “The relief that petitioner sought in his complaint was caus- were income from being made tax-exempt merely because the ally connected (and strongly so) to the denial by Union Security insurance company only agreed to pay the insurance claim after of his claim for long-term disability benefits. Although peti- litigation. Another case decided shortly after the 2009 letter tioner’s complaint alleged that he became disabled as a result of ruling is more troubling. physical injuries or sickness, this ‘but for’ connection is insuf- In Watts v. Commissioner,8 the taxpayer sued her automobile ficient to satisfy the ‘on account of ’ relationship discussed in insurer claiming breach of contract after she sustained physical O’Gilvie5 for the purposes of the exclusion under section 104(a) injuries in a collision with an uninsured motorist. The parties (2). Petitioner would not have filed his complaint if Union settled for an amount in excess of Watts’ $50,000 policy limit. Security had not denied his claim but instead paid him the Watts excluded the settlement under IRC Section 104(a)(2). long-term disability payments that he sought. In other words,

3 See O’Gilvie v. U.S., 519 U.S. 79 (1995); see also IRC Section 104. 6 Ktsanes v. Comm’r, T.C. Summ. Op. 2014-85 at *8. 4 T.C. Summ. Op 2014-85. 7 Ktsanes v. Comm’r, T.C. Summ. Op. 2014-85 at *11. 5 519 U.S. 79 (1996). 8 T.C. Memo. 2009-103. www.montanabar.org Page 29 The IRS disallowed the exclusion, asserting that the breach- filed suit against his insurer alleging bad faith. of-contract action was not based on tort or tort-type rights. Of The court determined that amounts received by Hauff for course, that requirement (from the Schleier case),9 is now obso- lost wages would be excludable from his income under IRC lete. Showing a bit of prescience, the taxpayer and the govern- Section 104(a)(2) as amounts received on account of a personal ment agreed that the settlement should be analyzed under IRC physical injury or physical sickness. Because Hauff would not Section 104(a)(2). have to pay tax on the amounts received from his insurer, the But the Tax Court took a dim view: court found that the insurer was acting in good faith by only “The parties apparently believe that the interposing of a paying Hauff his net lost wages. As a result, the court found for lawsuit between the insured and the insurer in this case causes the insurer on summary judgment. the payment petitioner received from State Farm to constitute Braden v. Commissioner,13 pre-dates the 2009 letter ruling, ‘damages’ that may be excluded from income only by satisfying but is interesting nonetheless. Braden received $30,000 from a the requirements of [IRC § 104(a)(2)]. We disagree.”10 class-action settlement with his automobile insurance company. Instead, the Tax Court analyzed the settlement payment The action was a breach of contract bad faith claim, but was under the authorities of IRC Section 104(a)(3), concerning related to underlying physical injury claims Braden had made amounts received “through” accident or health insurance against the insurance company. “for” personal injuries or sickness. The Tax Court concluded Braden excluded the $30,000 from his gross income under that the settlement payment could be excluded under IRC Section 104. The IRS disagreed, and the matter went to Tax Section 104(a)(3) up to the policy limits, and were taxable inter- Court. The IRS moved for summary judgment, arguing that the est or other taxable income to the extent the settlement pay- underlying cause of action was not based on a tort or tort-like ment exceeded Watts’ $50,000 policy limit. rights. In Watts, as in Ktsanes, the Tax Court seemed focused on Therefore, the IRS said it could not be excludable under making sure that in bad faith and breach of contract cases re- Section 104. The Tax Court, however, denied the motion, stat- garding insurers, IRC Section 104(a)(2) does not override IRC ing that the nature of the taxpayer’s claim controlled. The fact Section 104(a)(3). Where the proceeds of bad faith or breach of that this lawsuit was for breach of contract did not foreclose the contract cases would cause payments from insurers to be taxed possibility that the taxpayer’s claim was for personal physical differently from how the same payments would be taxed if paid injuries. by the insurer without dispute, taxpayers might expect the Tax Court to either refuse to apply IRC Section 104(a)(2) altogether Conclusion (as in Watts), or to construe its “on account of” language narrowly to render the subsection inapplicable (as in Ktsanes). Considering how many claims insurance companies face for Notably, though, Letter Ruling 20040304611 ruled that putatively bad faith behavior, it is surprising that there are not legal fees allocable to disability benefits were excludable under more tax cases considering the treatment to the plaintiff. Some Section 104(a)(3). The ruling involved a taxpayer who pur- bad faith plaintiff’s lawyers report that they routinely see clients chased disability insurance with after-tax dollars. The taxpayer pay tax on the recoveries without complaint. Some plaintiffs was disabled on the job, but his claim was denied. The taxpayer may exclude them from income without much thought, and thereafter filed suit against the insurance company, alleging bad perhaps there are few disputes. faith and contract damages. Despite the relative paucity of cases, it seems reasonable to The taxpayer prevailed, but the insurance company ap- believe that there are an increasing number of bad faith settle- pealed. The matter settled on appeal, and the taxpayer recov- ments and judgments. Not all involve good arguments for ered attorney fees and costs. The IRS ruled that because the exclusion, but some do. And sometimes the way to get to that underlying recovery was excludable under Section 104(a)(3), position can require some creativity. the recovered attorney fees and costs were also excludable. Indeed, Letter Ruling 200903073 involved a bad faith claim Hauff v. Petterson,12 is not a tax case. But it is worth reading that was originally owned by the tavern policy holder. The even if one is focused solely on the taxes. Instead of analyzing a claim was later pursued by an injured plaintiff who recovered bad faith recovery to ascertain how it should be taxed, the court “on account of” his injuries. uses the taxability of a recovery to determine whether the insur- The assigned bad faith claim enabled the plaintiff to sue the ance company acted in bad faith. David Hauff filed a claim with carrier. However, it was the nature of the underlying injury and his automobile insurer after he was involved in a collision with the plaintiff’s claim against the tavern and tavern manager that an uninsured motorist and sustained physical injuries. sparked the assignment. And it was the underlying injury that Among other things, he requested compensation for lost ultimately led to the recovery. wages. Hauff’s insurance carrier agreed to pay him an amount Robert W. Wood, a member of the State Bar of Montana, is a of lost wages based on Hauff’s wages net of the income tax that tax lawyer with www.WoodLLP.com, and the author of numerous he would normally have to pay on them. Hauff demanded that tax books including Taxation of Damage Awards & Settlement his lost wages be calculated based on his gross lost wages, and Payments (www.TaxInstitute.com). This discussion is not intended as legal advice. 9 515 U.S. 323 (1995) 10 T.C. Memo. 2009-103 at *5. 13 T.C. Summ. Op. 2006-78. 11 January 16, 2004 12 755 F. Supp. 2d 1138 (D. N.M. 2010).

Page 30 September 2016 Law School News Endangered from page 25

Gordon honored for chapter of book she authored capital, and financial capital can work together to achieve conservation objectives and offer private investment Professor Stacey Gordon was recently notified by the strategies. Environmental Law Institute (ELI) that a chapter she authored for The greater sage grouse was once a candidate for ESA the book "What Can Animal Law Learn from Environmental Law" protection across 11 Western states. Unprecedented has been selected as the best work published by the ELI Press in collaboration and a focus on habitat conservation led to the last year. a “not warranted” finding in September 2015. Montana’s The chapter, "The Legal Rights of All Living Sage Grouse Conservation Strategy emphasizes habitat Things: How Animal Law Can Extend the conservation and incorporates the mitigation hierarchy Environmental Movement's Quest for Legal into the permitting process. Compensatory mitigation Standing for Non-Human Animals," will be infor lingering impacts of development in designated sage cluded in the July/August Summer Reading Issue of grouse habitats on public or private lands in Montana will Gordon The Environmental Forum, ELI's magazine for the entail conservation banking and/or a habitat exchange. profession. Montana Department of Natural Resources and Additionally, the University of Montana presented Conservation (DNRC) Trust Land Management Division Gordon with the Montana Faculty Service Award Friday, April 29, (TLMD) manages over 5.2 million surface acres across at the UM Employee Recognition Day celebration. According to the state of Montana to generate over $100 million annu- the Office of the President, the Faculty Service Award is given to ally for K-12 schools and other endowed institutions. an individual who has a "history of providing superior (effective) Over 500,000 acres of state trust land resides near service that benefits The University of Montana." The University or in habitat of species listed as threatened under the will present 14 additional awards at the celebration to various Endangered Species Act – grizzly bear, Canada lynx, faculty and staff for their contributions and success. and bull trout. In order to provide long-term assurances Smith appointed to Missoula Public Art Committee for the DNRC forest management program and these species, the DNRC applied for and received an incidental In recognition of her expertise in intellectual property law and take permit and jointly developed a habitat conservation art law, Professor Cathay Smith was appointed to the Public Art plan (HCP) with the U.S. Fish and Wildlife Service. Committee for the City of Missoula on April 25, 2016. While the process to develop the HCP and the imple- The Public Art Committee consists of nine members serving mentation of the negotiated conservation strategies have four-year terms. Members that serve on the committee are selected improved the DNRC’s efforts at conservation and under- because of their expertise in historic preservation, visual arts, ar- standing of these species, legal assurances provided to the chitecture, or affiliation with a local business association or public agency may not be matched by its commitment to species entity. conservation. Recommendations to those applying for Smith teaches intellectual property, property, and a permit and HCP include: consideration of investment cultural property law courses at the School of Law. vs. return of HCPs; investigation of other partnerships Prior to joining the faculty at the School of Law, Smith or agreements that are more nimble; proactively and represented multinational corporations on intellectual pre-emptively manage habitat for species before they are property issues, including litigating infringement cases listed; and/or voluntarily develop state-driven manage- Smith in federal court, inter partes proceedings in the U.S. ment plans that are rigorous and comprehensive. Patent and Trademark Office (TTAB), and Uniform Zach Zipfel is agency legal counsel for the Montana Dispute Resolution Proceedings (UDRP) through WIPO. In addi- Department of Fish, Wildlife and Parks. Prior to law school tion to her litigation experience, she regularly counseled clients on he was a ranger with the National Park Service in Alaska issues involving trademarks, copyrights, and domain names. and Arizona. He clerked for Justice John Warner on the The Public Art Committee is responsible for reviewing, advocat- Montana Supreme Court and was an assistant attorney general with the Montana Department of Justice ing, and developing public art projects in the public domain for the City of Missoula. It develops a formal structure in which to create, Carolyn Sime graduated from the University of Montana develop, and maintain public art as well as further public accessibil- School of Law in 2014 and now leads implementation ity to the arts. of Montana's Sage Grouse Conservation Strategy. She worked as a wildlife biologist for 20 years at Montana Part of the committee’s mission is to develop a collection of Fish, Wildlife & Parks where she led efforts to develop the public art that encompasses a broad aesthetic range reflecting the gray wolf program and delist the species from the federal city and the minds of its citizens. It also aims to develop a collection Endangered Species Act. that improves the quality of life in the area, that is accessible to all Sonya Germann is the Forest Management Bureau Chief individuals, and that is a source of pride to all residents. for the Montana Department of Natural Resources and Smith’s appointment to the committee coincides with her forth- Conservation, Trust Land Management Division, where she coming article, Community Rights to Public Art, in the St. John’s works with over 50 foresters and scientists to manage the Law Review (forthcoming). State’s forested trust lands www.montanabar.org Page 31 Opinion | Air Ambulance Providers Providers' refusal to contract with insurers costing many Montanans thousands By Todd Lovshin solutions to this issue. Let me define the charges by stating that the aircraft is issue as I see it: Some non-hospital-based expensive equipment to purchase and It is believed that the first patient air ambulance providers and insurance operate, the 24 hour on-call status of its transport by aircraft happened on the companies haven’t been able to reach medical personnel adds costs and that the battlefields of World War I, when an agreement on the reimbursement level services are important and life-saving. open cockpit biplane was used to rescue for the services provided, leaving con- I agree. Where we part company with injured soldiers and bring them to field sumers with medical bills in the thou- some providers is when their costs are out hospitals. In 1973 the first civil airplanes sands of dollars (if not tens of thousands). of line with others in the industry offering dedicated to emergency medical services In 2011, the Montana Legislature the same services – many times the aver- began operations and, ever since, the created an exemption for air ambulance age costs or of the CMS allowable. industry of air ambulance providers has companies from the insurance statutes At PacificSource, we’ve been able grown significantly. In Montana, we and allowed them to offer membership to enter into contracts with the vast have numerous air ambulance providers programs in Montana (MCA 50-6-320). majority of air ambulance providers in that are hospital and non-hospital based This allows the company to sell a mem- Montana. The only exceptions are those operations. bership for air transport in case of emer- very few companies offering membership Air ambulance providers offer valu- gency. Now for the fine print: You are subscriptions. The crux of the argument able life-saving services to those in crisis. covered only if that company is the one to between insurers and these membership- They are essential to ensure Montanans transport you and they will charge your based air ambulance providers is the get the care they need when they need it. insurance company – the key here is that amount of reimbursement for services. The medical and flight professionals who they will not balance bill you any amount However, that same provider will accept perform these services are top notch and that the insurer doesn’t pay. They accept the insurer’s standard reimbursement if an important part of the emergency med- your membership fee and the standard and only if the patient has paid a mem- ical response teams for our rural state, insurance reimbursement as payment bership fee to the provider. often making the difference between life in full. If a different company (of the 14 Is two times the CMS allowable rea- and death. Therefore, it is important for currently operating in Montana) provides sonable? When we look at other provid- insurers to make sure that these provid- the service, you have no coverage. ers throughout the state and compare ers are in-network and that our members The Center for Medicare and the CMS equivalent rate structure and have access to these services. Medicaid Services (CMS) has established what is the typical insurance contract However, some of these non-hospital- a fee schedule for air ambulance provid- with them, we find that other providers based providers refuse to contract with ers and has adjusted that schedule based (primary care doctors, specialists, and insurers, leaving many Montanans with upon services offered in rural areas such emergency room doctors) are contracted thousands of dollars in outstanding bills. as Montana. It is the only nationwide to accept 162 percent to 225 percent of During the 2015 Montana Legislative benchmark available to judge costs for the CMS allowable. Session, House Joint Resolution No. 29 air ambulance providers. Now, I will What is the solution? Air ambulance passed. It charged the Economic Affairs be the first to state that the fee schedule providers are not regulated by the states. Interim Committee to study member- by CMS is most likely not adequate for Instead they fall under the purview of ship-based medical services. Given the payment. But how much is enough? the Federal Aviation Administration. stories of astronomical bills from air When examining what air ambulance Specifically, they are regulated by the Air ambulance providers and the urging of providers have charged insurers, we see Carrier Operations Branch of the FAA the State Auditor’s office, the Economic charges that range from 150 percent under the same section that regulates Affairs Interim Committee (EAIC) fo- of the CMS allowable to over a 2,200 airlines like Delta and Alaska. Therefore, cused its study on air ambulance provid- percent of the same allowable, according there are very limited instances where the ers, and has appointed a working group to PacificSource internal data and a Blue state can create its own regulations for led by Jesse Laslovich, chief legal counsel Cross Blue Shield of Montana presenta- these providers. to Montana’s State Auditor, to provide tion to EAIC air ambulance working The EAIC Air Ambulance work insight to the committee. This working group on Aug. 8. One of our recent group referenced above has been discuss- group made up of consumers, insurers examples was over $50,000 to fly a patient ing some potential legislation around and providers has been meeting and dis- from Helena to Missoula. cussing ways in which Montana can craft Air ambulance providers justify these Air Ambulances, page 34

Page 32 September 2016 ROADSHOW Friday, October 14 Big Horn Resort Billings 9 a.m. to noon 3 FREE ETHICS CLE! l Spoliation, ESI, Discovery & Technology Checklists l Confidentiality & Conflicts l What to Do When You Goof

www.montanabar.org Page 33 Continuing Legal Education Health Care Powers of Attorney CLE in Billings Sept. 9 Attorneys can learn about changes in federal and state regu- The program is a joint presentation of the State Bar of lations on Health Care Powers of Attorney at a CLE in Billings Montana’s Health Care Law Section and BETTR Section. on Sept. 9. This half-day CLE will review both proposed long-form and Upcoming State Bar-sponsored CLE proposed short form Powers of Attorney for Health Care. The speakers will discuss applicable Montana and Federal law regu- Friday, Sept. 9 — New Health Care Powers of Attorney — lations including: Montana statutes, Federal statutes, including Billings, Crowne Plaza. 2.75 CLE credits. Online registration HIPAA, Montana Supreme Court decisions, U.S. Supreme available at montanabar.org. Court decisions, POLST, recent developments regarding physi- Thursday-Friday, Sept. 22-23 10 CLE (2 ethics) — State Bar cian Aid in Dying, and competency determination issues. of Montana Annual Meeting — Great Falls. Online registration The program’s presenters are: available at montanabar.org. See details on pages 20-21 Lawrence D. Johnson, a sole practioner in Hamilton whose Friday, Oct. 7 – Eastern Montana CLE, details TBA — areas of practice include Trusts and Estates, Health Care, Miles City Nonprofit, Business and Real Estate Law; Friday, Oct. 14 — Road Show, 3 FREE Ethics CLE! — Megan D. McCrae, an associate with Crowley Fleck in the Billings. Online Registration open! firm’s Billings office who regularly advises hospitals, critical Friday, Oct. 21 — Advanced Family Law – Cutting-Edge access hospitals, federally qualified health centers, physician Issues, details TBA — Missoula practices, long-term care facilities, home health and hospice Wednesday, Oct. 26 — Set Up or Shore Up Your Practice providers, and dental practices on a broad range of operational CLE, details TBA — Helena issues; Charles W. “Chuck” Willey, an Adjunct Professor of Law at Other CLE of Interest the University of Montana School of Law from 2004 through 2012 who was Chair of the State Bar’s Business, Estates, Trusts, Tuesday-Wednesday, Sept. 20-21 — Montana Coalition Tax and Real Estate (BETTR) Section for 10 years. Against Domestic and Sexual Violence Annual Conference, The CLE is approved for 2.75 CLE credits. Cost is only $75, Use of Technology in Intimate Partner Stalking — Helena, 10 or $50 for attorneys practicing less than five years and members CLE. www.mcadsvconference.com. Contact Kelly Darcourt at of the Paralegal Section. [email protected] with questions.

investigation to identify the real costs associated with operating Air Ambulances from page 32 an air ambulance. The reauthorization bill and its amendments have not yet been addressed by the full chamber. creating a binding arbitration clause to settle disputes between Without a federal solution, what can be done in Montana? insurers and air ambulance providers. (Draft of this legislation We need to continue to be transparent on which air ambu- can be found at: http://www.leg.mt.gov/content/Committees/ lance providers are in network and educate medical personnel Interim/2015-2016/Economic-Affairs/Committee-Topics/ about the numerous in-network options for these services. Ambulance/draft-air-ambulance-bill8-8-16.pdf). While this is Encouraging hospitals to require that their preferred air ambu- an interesting approach in protecting Montanans from being lance providers operate in-network with insurers would go a balance billed, the federal Airline Deregulation Act prohibits long way in protecting our Montana consumers. Furthermore, states from creating any regulations that would impact rates of air ambulance providers should be transparent in their bill- a “carrier.” The draft legislation proposed by the work group, ing, just as hospitals and providers are, and just as insurers are again while just in concept, could set up a federal pre-emption required to be with their rate process. argument. And while states do have limited regulatory author- We are thankful for the scores of highly trained men and ity over air ambulance providers around medical and quality women who lay their hands on broken bodies in Montana, and standards of care, under current law they are prohibited from quickly transport them to necessary medical services. We stand regulating the prices, routes, and services of air ambulances. ready to work with the air ambulance provides and other stake- In April of this year, Sen. Jon Tester proposed amendments holders to find solutions to the issues. to the Federal Aviation Administration Reauthorization Act of 2016. One of those amendments would empower states to de- Todd Lovshin is the vice president and Montana regional direc- cide whether they want to create rules regarding air ambulance tor for PacificSource Health Plans. He joined PacificSource in 2012, rates and services, giving states the ability to evaluate true costs bringing with him more than 15 years of experience in govern- and establishing a standard of payment. Sen. Tester’s other ment relations and employee benefits. He serves on numerous industry advisory panels including the Governor’s Healthcare amendment would launch a Government Accountability Office Advisory Council.

Page 34 September 2016 ETHICS • Appellate Practice Tips: Ground Zero | March 2012 • Social Networking and Family Law | January 2013 • Cybersecurity in the Law and the Eﬀ ect of Cyber BANKRUPTCY • How NOT to Mess Up Children During a Divorce Crime on Attorneys | February 2016 • Rules Update - Bankruptcy Local Rules | April 2012 Proceeding | April 2012 • At the Table: Practical and Ethical Guidance for Plea BUSINESS LAW • Drafting Family Law Briefs to the Montana Negotiations | April 2015 • A Limited Primer on Montana Insurance Coverage Supreme Court | April 2012 • Ethics and Social Media | April 2015 Issues | June 2016 • Settlement Conference Do’s and Don’ts | March • Don’t Let the Cloud Rain on You | March 2014 • Avoiding Malpractice Claims | January 2016 2012 • Ethics and Managing Business Risk in the Law Firm FAMILY LAW GOVERNMENT | March 2014 • Montana Child Support Enforcement Guidelines • SB 355 Update -- New Developments in Exempt • Ethics and Elder Law | February 2013 Revisited | February 2016 Water February 2015 • Understanding Behavioral Addictions in the Legal • Mediating Cases Touched by Domestic Violence | • Recurring Issues in the Defense of Cities and Professional | March 2013 October 2015 Counties • Stress, Compassion Fatigue and Dealing with • Child Support Cases from an ALJ Perspective Part I HEALTH CARE Emotion al Clients | April 2013 | April 2014 • Demystifying Reference Based Pricing & Determin- • Do Loose Lips Sink Ships? Ethical Implications of • Child Support Cases from an ALJ Perspective Part ing Whether it Will Work for Your Client | April 2016 Confi dentiality Agreements | April 2013 II | May 2014 • Investigating Health Care Fraud in MT | January • Ethics and Elder Law Part I | April 2013 • 2013 Legislative Changes to Family Law Statutes | 2016 • Ethics and Elder Law Part II | April 2013 December 2013 • Health Care Law -- 2015 Montana Legislative Substance Abuse & Mental Illness (Ethics) • Limited Scope Representation Part I | September Update | June 2015 • From Distressed to De-stressed | May 2016 2013 • Anti-Trust Issues in Health Care | November 2014 • A Lawyer’s Toolbox When Substance Abuse Hits • Limited Scope Representation Part II | September • A Look Inside: OCR Compliance Audits | April 2013 Close to Home | May 2014 2013 LABOR AND EMPLOYMENT • Identifying and Treating PTSD | March 2014 • Attorney’s Guide to the Guidelines | August 2013 • Contested Case Procedures Before the Department • The Aging Lawyer | February 2013 • A Primer on Divorce | August 2013 of Labor and Industry | May 2012 • Ethical Duties and the Problem of Attorney • Parenting Plans | August 2013 LAW OFFICE MANAGEMENT & TECH Impairment | January 2013 • Standing Masters’ Observations | June 2013 • Top Tech tips for Tomorrow’s Law Practice | January • Is it Time to Retire? | November 2012 • Divorce Coaching | April 2013 2016 • SAMI Smorgasbord | May 2012 • Hendershott v. Westphal - Practical Implications | • Corporate Counsel Institute: Alternative Billing and APPELLATE PRACTICES AND PROCEDURE April 2013 Auditing: Viable Alternatives to the Billable Hour? • Appellate Practice Tips: Brief Writing and Oral • Facilitating Co-Parent Communication with PROBATE & ESTATE PLANNING Argument | December 2015 OurFamilyWizard.com | January 2013 • Estate Planning Basics | January 2016 www.montanabar.org Page 35 Obituaries Roland Graham Shanahan, Johnson & Waterman in Helena, finally retiring at age 82. Roland “Rollie” Graham died on July 30 at the age of 86 in Rollie loved the practice of law but, even more so, he loved Helena. his family and cherished his friends and colleagues. Special Rollie was born in Minneapolis on May 12, 1930, to memories are of camping; summers spent boating, fishing, and Arthur George Graham and Amelia Martina Bille Graham. water skiing; years of piano, trumpet and percussion recitals, He attended and graduated from the University band and choir concerts, and dance recitals; Boy Scouts and of Minnesota with a degree in Business coaching little league baseball games and watching synchro- Administration, during which time he served in nized swimming and school theater productions; winter skiing ROTC. in Colorado and Montana; cross country skiing in the Twin In 1952, he began two years of active duty in Cities’ parks; bicycling in the Upper Peninsula; family road trips the United States Navy as an ensign, and spent 10 to Texas, Montana, and Alberta, Canada; golfing; and even a months patrolling the waters off of Korea during few brief years attempting to master photography. He was a role Graham the Korean conflict. Upon his return from active model, willing audience and constant friend to grandchildren duty, he married Shari Jones. After he completed Graham and Lauren who were privileged to have Grandpa ever his final year of active service in San Diego, he spent the next present as they were growing up. three years attending the University of Minnesota School of During these years, Rollie gave back generously to the com- Law, serving on the Law Review, and graduating with a juris munity with his time and talents. When his family was young, doctorate in 1957. Rollie served in the Optimist Club setting up and manning Rollie practiced law in Minnesota and Wisconsin until 1999, Christmas tree lots for several years. He found great satis- working as counsel for the Milwaukee Railroad, the Federal faction and joy as an active member of Rotary Club, first in Reserve Bank of Minneapolis, and the First Wisconsin Holding Minneapolis for a number of years, and then in the Rotary Club Company. He moved to Helena with his daughter and son-in- of Helena from 2002 until his passing. law, Sue and Gabe Woodrow, and eventually becoming bored He was buried with military honors at Montana State with retirement. Missing the practice of law, he sat for the Veterans Cemetery. In lieu of flowers, memorials may be made Montana bar exam. At the age of 72, Rollie was proudly admit- in Rollie’s name to the Helena Rotary Foundation, P.O. Box ted to the Montana State Bar. Shortly after, he began a 10-year 333, Helena, MT 59624. Please visit www.retzfuneralhome.com “second” law career as of-counsel with the law firm Gough, to offer a condolence or to share a memory of Rollie.

territorial suspicion of outside influence, elements of a partisan-election model, Judicial from page 17 a progressive-era concern about corpo- for better or worse. This prompted a rate corruption, and extraordinarily deep vigorous public debate, in the context of 2010 ouster of three Iowa justices — led deliberation among ordinary citizens the campaign between Mike Wheat and by outside campaign spending — after about competing models for judicial Lawrence VanDyke, about the Montana its Supreme Court recognized a right to selection in the framing of its 1972 Constitution and Citizens United, the in- same-sex marriage. To use the hydraulics Constitution. The result is a hybrid selec- fluence of trial lawyers and corporations, metaphor sometimes applied to cam- tion model sharing elements of contested and the merits of electing judges at all. paign finance, it seems safe to say that, election, retention election, merit, and The campaign did not settle that debate, like water or money, political influence (with strong gubernatorial representa- of course. Instead, it raised old questions will find its way through any judicial- tion on the nominating commission) about judicial selection in a new era of selection landscape. straight appointment models. After the campaign finance. In 2016, as in 1866, Conclusion invalidation of its partisan endorse- 1972, and 2014, those questions continue Montana’s judicial elections reflect a ment prohibition in the wake of Citizens to call for answers. United, Montana now shares some 406-683-6525 Montana’s Lawyers Assistance Program Hotline Call if you or a judge or attorney you know needs help with stress and depression issues or drug or alcohol addiction .

Page 36 September 2016 Job Postings and Classified Advertisements CLASSIFIEDS Contact | Joe Menden at [email protected] or call him at (406) 447-2200. See the State Bar of Montana's new online Career Center at jobs.montanabar.org. ATTORNEYS years experience is preferred with some background in litigation. Salary depends on experience and benefits include health care, long term disability insurance, life insurance, and 401K. Please send your INDIAN LAW AND CLINIC FACULTY POSITION: The Alexander resume and cover letter to [email protected]. Blewett III School of Law at the University of Montana, the only law school in the state, anticipates hiring a full-time, tenure-track profes- ATTORNEY: Established Bozeman law firm seeks an associate for a sor beginning in the 2017-2018 academic year to teach Indian law general practice, emphasizing litigation, real estate and water law. and other courses related to your practice experience, in addition Litigation experience required. Good working environment and to co- supervising the Margery Hunter Brown Indian Law Clinic. Our benefit package. Salary DOE. Submit cover letter, resume, references mission emphasizes Indian law training, and the law school offers and writing sample to: Moore, O’Connell & Refling, P.C., PO Box 1288, a Certificate in Indian Law. We are also committed to integrating Bozeman MT 59771. theory with practice, making substantial practice experience in the DEPUTY COUNTY ATTORNEY: Big Horn County Attorney’s Office, areas to be taught particularly valuable. See full listing and apply Hardin, MT. Full-time. Annual Salary: $75,525 plus benefits. License online at https://goo.gl/p0Edv2 to practice in Montana; Experience preferred. Subject to Pre- CONSUMER LAW AND PROTECTION CHAIR: The Alexander Blewett Employment Drug and Alcohol Testing. For job description and III School of Law at the University of Montana, the only law school application, contact Rhonda at (406)665-9735. Submit application, in the state, anticipates hiring a full-time, tenure-track professor resume and legal writing sample to: Big Horn County HR Office, P.O. beginning in the 2017-2018 academic year to serve in the newly cre- Box 908, Hardin, MT 59034-0908. Applications must be received or ated Blewett Chair in Consumer Law and Protection. Supported by a postmarked by Friday, September 30, 2016. AAO/EOE. substantial endowed program fund, the Chair has an exciting oppor- DEPUTY COUNTY ATTORNEY: The Hill County Attorney’s Office tunity to build a nationally renowned and innovative consumer law has one full-time Deputy County Attorney position open for hire. and protection program from the ground up. In addition to teaching Salary depends on qualifications and experience, plus all applicable consumer law and related courses, the Chair will organize academic Hill County benefits. The Deputy County Attorney primarily pros- programs and develop student opportunities in consumer law and ecutes criminal matters in Justice Court, District Court and Youth protection through clinical placements, externships, and/or intern- Court, and represents the Department of Public Health and Human ships. See full listing and apply online at https://goo.gl/18mXsE Services in abuse and neglect cases. This position performs all duties ASSOCIATE ATTORNEY: Lorang Law, PC, a general practice firm of the County Attorney in the County Attorney’s absence, or at the in Havre, MT, seeks an associate attorney. Salary is based upon direction of the County Attorney including representing the county experience and partnership potential exists for qualified candidates. or state in civil matters in various courts of law, and advising county Please send cover letter, resume and references to 410 3rd Ave, officials and the public on legal matters of concern to the county or Havre, MT 59501. For more information on the firm, please visit the various county departments. A full job description is available www.loranglaw.com. at the Havre Job Service or from the Hill County Personnel Office at 265-5481, ext 239, or e-mail [email protected]. Please provide ASSOCIATE ATTORNEY: Silverman Law Office, PLLC (www.mt- a cover letter, resume, transcript, writing sample, and references to taxlaw.com) has an associate attorney position available in each of the Hill County Personnel Office, 315 Fourth St., Havre, MT 59501; or its Bozeman and Helena offices. We believe that customer service email to [email protected]. This position is open until filled. For and best business practices are a key to a successful legal prac- more information, please contact the Personnel Office or Gina Dahl, tice. Applicants must have strong communication, teamwork and Hill County Attorney at 265-5481 extension 211. people skills and an ability to provide customer service to a wide array of clients. Our practice focuses on business/tax/transactional/ LITIGATION/TRANSACTIONS: Established law firm in Billings, estate planning in a rapidly expanding business environment, with Montana, seeks attorney with three or more years of experience an unbelievable support team that provides a positive work and in litigation and/or transactions. Please send letter of application, life atmosphere. Applicants must be admitted to practice or in the references, resume, transcript and writing sample to classifieds@ process of obtaining admission to practice in Montana. We offer a montanabar.org with a subject line of 1606-01. highly competitive compensation and benefits package. Cover let- ASSOCIATE COUNSEL: Zoot Enterprises in Bozeman. Zoot’s Legal ter, references, resume and writing sample should be sent to Julie@ Group is responsible for managing all legal functions applicable to mttaxlaw.com. Zoot’s business. The Associate Counsel position will provide legal ASSOCIATE ATTORNEY: Kasting, Kauffman & Mersen, a general expertise and guidance regarding a large variety of legal and busi- practice law firm in Bozeman, MT, is seeking an associate with strong ness issues applicable to Zoot and its related companies, including research, writing and analytical skills. Ideal candidate has 2-5 years legal/regulatory compliance, contract drafting and negotiation, of experience. Salary depends on experience. Please send resume, licensing, protection and management of intellectual property, cover letter and references to Margaux Meyer, [email protected]. employment law issues, tax compliance, entity structure and cre- ation, and management of outside counsel. See full listing at jobs. ATTORNEY: Mackoff Kellogg Law Firm, the oldest law firm in montanabar.org. Western North Dakota and Eastern Montana, is looking to add to its team of attorneys. Mackoff Kellogg Law Firm provides legal services LITIGATION ASSOCIATE: Hall & Evans, L.L.C., a prominent and in a wide variety of areas including litigation, energy law, estate respected law firm headquartered in Denver, Colorado is seeking an planning, commercial transactions, taxation, business formation Associate with 3-5 years of litigation experience to join our Billings, and family law. We are seeking a lateral hire with a strong work Montana office to work with existing major national clients in ethic, excellent oral and written communication skills, and solid case Montana and Wyoming. management skills. Applicants must be licensed in North Dakota or have the ability to be licensed in the next six months, at least three MORE classifieds NEXT PAGE

www.montanabar.org Page 37 ASSOCIATE DIRECTOR/GENERAL COUNSEL: The Montana League and legal assistant in Great Falls, MT. Reasonable terms. Great view. of Cities and Towns (MLCT) is seeking a qualified candidate for our For more information email: [email protected]; (406) 727-4041. Associate Director/General Counsel position, to advocate municipal policy positions and to provide general legal review and advice on MEDIATION League functions. MLCT is located in beautiful Helena Montana and has as its sole purpose the cooperative improvement of municipal MEDIATION AND ARBITRATION SERVICES: Please contact Carey government in Montana. You can learn more by visiting www. E. Matovich, Matovich, Keller & Murphy, P.C., Billings, MT, 406-252- mtleague.org. 5500, or email at [email protected]. LITIGATION ATTORNEY: Chaloupka Holyoke Snyder Chaloupka & Longoria, an AV-rated law firm in Scottsbluff, Nebraska, seeks to hire CONSULTANTS & EXPERTS a litigator with 3-10 years of experience. Practice includes plaintiff’s FORENSIC DOCUMENT EXAMINER: Trained by the U.S. Secret personal injury, criminal defense, commercial litigation, civil rights Service and U.S. Postal Inspection Crime Lab. Retired from the and appellate work. Western Nebraska is a good location for lawyers Eugene, Ore., P.D. Qualified in state and federal courts. Certified by who like to try cases; it is also a good location for raising a family, the American Board of forensic Document Examiners. Full-service enjoying outdoor recreation and taking in live music and cultural laboratory for handwriting, ink and paper comparisons. Contact Jim events. We offer a competitive salary and benefits, opportunities for Green, Eugene, Ore.; 888-485-0832. Web site at www.documentex- a diverse and satisfying practice and support for your community aminer.info. involvement. BOARD CERTIFIED VOCATIONAL EXPERT: 42 years experience providing vocational expert services to Montana attor- PARALEGALS/LEGAL ASSISTANTS neys. Professional member of the American Board of Vocational PARALEGAL: Are you looking to work with a great, hard-working Experts, National Association of Forensic Economics, International team where you will expand your skills and knowledge within the Association of Rehabilitation Professionals, and the American industry? Silverman Law Office, located in Helena and Bozeman, is Rehabilitation Economics Association. I have provided testimony in seeking two (2) experienced and passionate full-time paralegals to FELA, personal injury, marital dissolution, medical malpractice, work- join our Helena and Bozeman office. As a paralegal, you will assist ers’ compensation, and wrongful death cases. Norman W. Johnson, attorneys working with clients on probate, estate planning, real M.S., CRC, ABVE/F, www.normjohnsoncrc.com , [email protected] estate, business, and transactional matters. This position requires 406 883-0398 expertise in use of Microsoft Word and Excel, as well as outstanding BOARD CERTIFIED VOCATIONAL EXPERT: 42 years’ experience proofreading and writing skills. The right candidate(s) must possess providing vocational expert services to Montana, Washington and knowledge of legal procedures, organizational skills, ability to priori- Idaho attorneys. Professional member of the American Board of tize workflow assigned by numerous team-members, and the ability Vocational Experts, National Association of Forensic Economics, to work independently. A full benefit package and competitive International Association of Rehabilitation Professionals, and the wage will be offered to successful candidates. Please send a resume, American Rehabilitation Economics Association. I have provided cover letter, and writing sample to [email protected]. testimony in FELA, personal injury, marital dissolution, medical malpractice, workers’ compensation, and wrongful death cases. Norman ATTORNEY SUPPORT/RESEARCH/WRITING W. Johnson, M.S., CRC, ABVE/F, www.normjohnsoncrc.com , nwjcrc@ charter.net 406-883-0398, 406-249-5303 cellular. ENHANCE YOUR PRACTICE with help from an AV-rated attorney with 33 years of broad-based experience. I can research, write and/ COMPUTER FORENSICS, DATA RECOVERY, E-DISCOVERY: or edit your trial or appellate briefs, analyze legal issues or otherwise Retrieval and examination of computer and electronically stored assist with litigation. Please visit my new website at www.denevile- evidence by an internationally recognized computer forensics gal.com to learn more. [email protected], 406-541-0416. practitioner. Certified by the International Association of Computer Investigative Specialists (IACIS) as a Certified Forensic Computer COMPLICATED CASE? I can help you sort through issues, design Examiner. More than 15 years of experience. Qualified as an expert a strategy, and write excellent briefs, at either the trial or appellate in Montana and United States District Courts. Practice limited to level. 17+ years’ experience in state and federal courts, including 5 civil and administrative matters. Preliminary review, general advice, years teaching at UM Law School and 1 year clerking for Hon. D.W. and technical questions are complimentary. Jimmy Weg, CFCE, Weg Molloy. Let me help you help your clients. Beth Brennan, Brennan Computer Forensics LLC, 512 S. Roberts, Helena MT 59601; (406) Law & Mediation, 406-240-0145, [email protected]. 449-0565 (evenings); [email protected]; www.wegcomputer- BUSY PRACTICE? I can help. Former MSC law clerk and UM Law forensics.com. honors graduate available for all types of contract work, including BANKING EXPERT: 34 years banking experience. Expert banking legal/factual research, brief writing, court/depo appearances, pre/ services including documentation review, workout negotiation post trial jury investigations, and document review. For more infor- assistance, settlement assistance, credit restructure, expert witness, mation, visit www.meguirelaw.com; e-mail [email protected]; preparation and/or evaluation of borrowers’ and lenders’ positions. or call 406-442-8317. Expert testimony provided for depositions and trials. Attorney ON DEMAND LITIGATION SUPPORT: When things get busy, in- references provided upon request. Michael F. Richards, Bozeman MT crease your productivity without increasing overhead. Outsource le- 406-581-8797; [email protected]. gal research, writing, and other litigation tasks to David Sulzbacher, a Montana and North Dakota licensed attorney with clerkship, civil EVICTIONS litigation, and criminal experience in Montana courts. $75/hr for speedy and high quality briefs, pleadings, memoranda, doc review, etc. Call (406) 407-7079 or email [email protected]. EVICTIONS LAWYER: We do hundreds of evictions statewide. Send your landlord clients to us. We’ll respect your “ownership” of their other business. Call for prices. Hess-Homeier Law Firm, 406-549- OFFICE SPACE/SHARE 9611, [email protected]. See website at www.montanae- GREAT FALLS: Looking for attorney to share fully furnished office victions.com.

Page 38 September 2016 jobs.montanabar.org

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